EEOC v. Presrite Corporation

Transcription

1 Cornell University ILR School Consent Decrees Labor and Eployent Law Progra EEC v. Presrite Corporation Judge Patricia A. Gaughan Follow this and additional works at: Thank you for downloading this resource, provided by the ILR School's Labor and Eployent Law Progra. Please help support our student research fellowship progra with a gift to the Legal Repositories! This Article is brought to you for free and open access by the Labor and Eployent Law Progra at DigitalCoons@ILR. It has been accepted for inclusion in Consent Decrees by an authorized adinistrator of DigitalCoons@ILR. For ore inforation, please contact hldigital@cornell.edu.

2 EEC v. Presrite Corporation Keywords EEC, Presrite Corporation, 1:11-cv-00260, Consent Decree, Disparate Treatent, Hiring, Sex, Feale, Manufacturing, Eployent Law, Title VII This article is available at

3 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 1 of 16. PageID #: 4250 UNITED STATES DISTRICT CURT NRTHERN DISTRICT F HI EQUAL EMPLYMENT PPRTUNITY ) CMMISSIN, ) ) CaseNo. l:ll-cv Plaintiff, ) ) Judge Patricia A, Gaughan ) ) PRESRITE CRPRATIN. ) ) Defendant. ) CNSENT DECREE INTRDUCTIN AND FINDINGS ) n, February 4, 2011 the U.S. Equal Eployent pportunity Coission ("Coission" or "EEC") filed this action against Defendant Presrite Corporation alleging that Defendant has engaged in a pattern or practice of gender discriination against feale job applicants in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). EEC also alleged that Defendant engaged in a record-keeping violation. Defendant denies any violation of Title VII or any wrong doing. EEC and Defendant enter into this Consent Decree to resolve this action and all clais asserted in EEC's Coplaint and to proote and effectuate the purposes of Title VII. The Court finds that it has jurisdiction over the subject atter of this action and the parties for purposes of the action, entry of the Consent Decree, and all proceedings related to the Consent Decree. The Court, having exained the ters and provisions of the Consent Decree, further finds that it is reasonable and just in accordance with the Federal Rules of Civil Procedure and 1

4 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 2 of 16. PageID #: 4251 Title VII. The Court finds that entry of this Consent Decree will further the objectives of Title VII and will be in the best interests of the parties, those for who the EEC seeks relief, and the public. NW, THEREFRE. IT IS RDERED. ADJUDGED AND DECREED THAT: DEFINITINS A. "Defendant" eans Presrite Corporation and its predecessors, successors, assigns, agents, and entities in active concert. B. "Coission" or "EEC" is the U.S. Equal Eployent pportunity Coission, an agency of the United States Governent. C. The ter "hire" or "hiring" refers to the filling of a job opening with an individual who is new to the Copany or is an eployee of the copany but new to the job title she or he has sought. D. "Eligible Claiants" or "Eligible Claiant" eans all persons who: are feale; sought eployent with Defendant (either directly or through an eployent agency) any tie fro April 18, 2007 through the date of entry of this Decree; and sought eployent in any position defined as a Laborer or perative position, or circustances deonstrate to EEC that they were otherwise considered by Defendant as potential candidates for a Laborer or perative position; were of legal age to work in the position(s) in question: were not selected for those positions by Defendant; and did not reject a bona fide offer of eployent with Defendant. E. "Hiring authority" or "hiring authorities" refers to personnel of Defendant or any thirdparty who participate in selection decisions related to screening, interviewing and/or hiring of job applicants, as well as any anagerial personnel with a direct or successively higher supervisory

5 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 3 of 16. PageID #: 4252 role over such hiring authorities. F. "Day'" or "days" eans calendar days. GENERAL PRVISINS AND CURT ENFRCEMENT PWERS 1. This Decree constitutes full discharge and satisfaction of all clais which were alleged in the Coplaint filed in this Title VII action by the EEC based on EEC's Deterination regarding the Charge of Discriination by forer EEC Coissioner Christine Griffin. 2. EEC and Defendant shall bear their own attorney's fees and costs incurred in connection with this action. 3. This Court shall retain jurisdiction to enforce the ters of this Decree and will have all available powers to enforce this Decree, including but not liited to onetary sanctions and injunctive relief. GEGRAPHIC SCPE AND DURATIN F DECREE 4. This Decree shall apply to Defendant's Jefferson, East 78 th Street, and Besseer facilities. 5. This Decree shall becoe effective on the date of its entry by the Court and shall reain in effect until its expiration date, which shall be three (3) years after the date of its entry by the Court. INJUNCTIN 6. Defendant, its officers, agents, servants, eployees, successors in interest and all persons acting in concert or on their behalf are enjoined and restrained fro engaging in any eployent practice that discriinates against its job applicants and eployees on the basis of gender in violation of Title VII. Such enjoined and restrained practices include, but are not liited to: (a) subjecting feale job applicants to discriination in the recruiting or hiring process because of 3

6 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 4 of 16. PageID #: 4253 their gender; and (b) failing to hire feale job applicants, unless such failure to hire is based on a legitiate non-discriinatory reason 7, Defendant, its officers, agents, servants, eployees, successors in interest and all persons acting in concert or on their behalf are required to preserve and retain all applications, application aterials (e.g., resues, letters, inquiries), counications between Defendant and any eployent agency regarding recruiting or placeent or other eployent atters, and any other aterials which reflect all inforation provided to Defendant regarding job applicants for the duration of this Decree. All paper application aterials described in this paragraph ust be retained in their original for. 8. Defendant, its officers, agents, servants, eployees, successors in interest and all persons acting in concert or on their behalf are required to create and aintain Job Descriptions for all Laborer and perative positions at all facilities which accurately describe all job qualifications. As used in this Decree, the phrase "job qualifications" eans all qualities that an applicant ust have to be hired. The Job Descriptions described in this paragraph shall be aintained and updated, if necessary, for the duration of this Decree and shall be provided to all eployent agencies with who Defendant does business. Defendant will transit the Job Descriptions described in this paragraph to each such eployent agency with a cover letter stating that: (1) the Job Descriptions enclosed were prepared in copliance with this Decree; (2) any Job Descriptions previously provided by Defendant should be disregarded; and (3) Defendant does not require, nor authorize, the adinistration of any tests to applicants seeking eployent with Defendant and specifically advises the eployent agencies to conduct no tests on applicants seeking eployent with Defendant. Presrite's labor and operative job descriptions have been 4

7 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 5 of 16. PageID #: 4254 provided to EEC before execution of this Decree. 9. Defendant, its officers, agents, servants, eployees, successors in interest and all persons acting in concert or on their behalf are required to create and aintain coplete applicant flowlogs that include the following inforation as attached in the Applicant Flow Log, attached at Attachent B, including: date of application; first and last nae; address; race; gender; position applied for if applicable; disability or veteran status; source of referral if applicable; status (i.e. whether the applicant was hired, refused the position; not qualified; other candidate selected; etc.). All persons who seek eployent and/or inquire about eployent with Defendant will be listed on Defendant's applicant flow logs and will include all persons referred, or suggested, for eployent by any eployent agency. Defendant's applicant flow logs will be prepared and saved electronically in Excel forat and will include sortable fields which collect, at a iniu, the inforation described in this paragraph about each applicant. Defendant will prepare and aintain coplete applicant flow logs in electronic for for the duration of this Decree. 10. Defendant, it officers, agents, servants, eployees, successors in interest and all persons acting in concert or on their behalf are hereby enjoined and restrained fro engaging in any eployent practice that discriinates against any of their eployees or job applicants who oppose any practice ade unlawful by Title VII. Defendant is further enjoined and restrained fro engaging in any eployent practice that discriinates against any job applicant. eployee or other person because he or she ade a charge, or participated, testified or assisted the Coission in any anner, or sought or received relief in this action, the adinistrative proceedings preceding this action, or in any other proceeding under Title VII. 5

8 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 6 of 16. PageID #: 4255 MNETARY RELIEF 11. Within ninety (90) days of entry of this Decree, Defendant shall pay seven hundred thousand US dollars ($700,000) in onetary relief into a Qualified Settleent Fund account ("QSF") to be established and adinistered by a third-party settleent clais adinistrator (' Adinistrator"), discussed below. The onetary relief shall be payable to Eligible Claiants who the EEC has deterined were subjected to discriination because of gender in the for alleged in EEC's Coplaint at any tie during the period fro April 18, 2007 until the entry of this Decree. Defendant shall notify EEC after it has copleted payent into the QSF. 12. Distribution of onetary relief to EEC's Eligible Claiants shall be ade by the Adinistrator in accordance with a clais process and eligibility criteria to be deterined by EEC in consultation with the Adinistrator. All distributions of onetary relief to and aong Eligible Claiants will be deterined by the EEC. Defendant shall not have any participation or role in deterining the identities of Eligible Claiants or aounts payable to such persons. 13. EEC shall use the following iniu criteria to identify persons to receive onetary awards regarding its hiring discriination clai: persons who (a) are feale; (b) sought eployent with Defendant (either directly or through an eployent agency) any tie fro April 18, 2007 through the date of entry of this Decree; (c) sought eployent in any position defined as a Laborer or perative position, or circustances deonstrate to EEC that they were otherwise considered by Defendant as potential candidates for a Laborer or perative position; (d) were of legal age to work in the position(s) in question; (e) were not selected for those positions by Defendant; and (f) did not reject a bona fide offer of eployent with Defendant. 6

9 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 7 of 16. PageID #: EEC shall have two (2) years after entry of this Decree within which payents ay be ade to Eligible Claiants fro the QSF. CLAIMS ADMINISTRATR 15. In accordance with 26 C.F.R B-1 (c)( 1), the Court, by this provision and the Decree, approves the establishent of a Clai Fund as a Qualified Settleent Fund (QSF) adinistered by Settleent Services, Inc D Thoasville Road, Tallahassee, Florida 32308, a qualified third-party settleent adinistrator that was selected by the parties before entry of the Decree. This QSF, in accordance with 1.468B-l(c)(2) is established to help resolve or satisfy one or ore contested clais that have resulted or ay result fro an event or related series of events that have occurred and have given rise to one or ore clais by EEC asserting Defendant's liability arising out of alleged violations of law. Lastly, under 1.468B-1 (c)(3), the QSF ordered established by the provision of this Decree, shall be segregated fro other assets of the transferor, Defendant Presrite Corporation. 16. The QSF, and payents ade fro the QSF, shall be adinistered by the settleent clais adinistrator ("Adinistrator"). Upon entry of this Decree, the Adinistrator shall coence its duties in accordance with this Decree and instructions received fro EEC. If either party deterines that the Adinistrator cannot perfor its duties in a proficient anner or at reasonable cost in light of the work required to be perfored under this Decree, the rates quoted by the Adinistrator prior to entry of this Decree, and the availability of other potential Adinistrators that ay be ore cost-effective, either party ay file a otion with the Court for appointent of a new Adinistrator. Prior to filing such otion, the parties shall confer in a 7

10 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 8 of 16. PageID #: 4257 good faith effort to identify a new Adinistrator satisfactory to both parties for presentation to the Court. 17. Payents to Claiants fro the QSF shall be for copensatory daages and the QSF shall be responsible for issuing to each Claiant to who the QSF issues payent an IRS For 1099-MISC for the year in which payent is ade, as required by law, directed to the sae address to which payent was sent. 18. Fhe Adinistrator shall provide the following services pursuant to this Decree: (a) using paraeters approved by EEC, assist in identification of Eligible Claiants; (b) (c) locating and corresponding with such persons; receiving and processing telephone and written inquiries fro potential Eligible Claiants; (d) tracking data regarding potential Eligible Claiants and payents ade fro the QSF; (e) verification of inforation received fro potential Eligible Claiants and evaluation of docuentation received; (f) issuing payent to Eligible Claiants fro the QSF and tracking and accounting for all undeliverable payents; (g) (h) (i) periodic reporting of activities to EEC; conferring with EEC regarding adinistration of the QSF; and any other duties that EEC reasonably deterines are necessary to adinister the QSF. 8

11 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 9 of 16. PageID #: Defendant shall pay all expenses of the Adinistrator (or any subsequently appointed Adinistrator) incurred in the course of carrying out its duties under this Decree. 20. Defendant shall provide the Adinistrator with all inforation and docuents necessary to carry out its functions. FFERS F EMPLYMENT T AGGRIEVED PERSNS 21. During the three (3) year duration of this Decree as job vacancies becoe available at Defendant's facilities. Defendant shall offer eployent to not less than forty (40) feale job applicants who sought eployent with Defendant during the period fro April 18, 2007 through the date of entry of this Decree that EEC identifies as Eligible Claiants who, during the clais process, have expressed an interest in receiving an offer of eployent fro Defendant. The forty (40) feale job offers shall be distributed aong Defendant's facilities as Presrite sees fit, as openings occur, and/or as job applications so dictate. Defendant shall ake offers to eligible persons for the job titles that they previously sought, if applicable. Such persons shall be given priority consideration and shall be offered eployent before any current applicants. EEC shall provide a listing of Eligible Claiants to Defendant which shall contain their full naes, last known addresses, last known telephone nubers, and job titles they sought. 22. Defendant ay require the Eligible Claiants on the listing(s) to subit an updated job application or resue and ay interview the Eligible Claiants prior to extending offers of eployent. Defendant ay select aong any persons on the listing(s) provided by EEC. 23. In each of their sei-annual reports to EEC described below, Defendant shall report the naes of all Eligible Claiants on EEC's listing who, during that reporting period, were offered eployent, the job title and location of the positions that they were offered, whether 9

12 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 10 of 16. PageID #: 4259 the offers were accepted or rejected, and, in the event Defendant deterines that one or ore Eligible Claiants whose naes appear on an EEC listing is not qualified for the job titles sought, Defendant shall notify EEC of the naes of such persons and the reason(s) they were deeed unqualified. 24. Defendant shall ake all good faith, reasonably necessary efforts to find feale candidates to fill vacancies in Laborer and perative positions. 25. Reporting to EEC: For the duration of this Decree. Defendant shall report to EEC the following inforation pertaining to the six onth period iediately preceding the report on a sei-annual basis beginning June 30, 2013 and shall produce the Applicant Flow Logs aintained pursuant to this Decree: (i) a suary setting forth, separately for job site/location, the total nuber of applicants for all Laborer positions and, within each job title, the total nuber of feale applicants and the total nuber of ale applicants; (ii) a suary setting forth, separately for job site/location, the total nuber of applicants for all perative positions and, within each job title, the total nuber of feale applicants and the total nuber of ale applicants; (iii) a suary setting forth, separately for each location, the total nuber of new hires for each job title and, within each job title, the total nuber of feale new hires and the total nuber of ale new hires for Labor and perative positions. DISCRIMINATIN PREVENTIN MEASURES: DECREE CMPLIANCE AND THER EEC) TRAINING 26. Defendant will provide not less than four (4) hours of training to all huan resources personnel and all hiring authorities concerning the content of this Consent Decree. All training described in this paragraph shall be provided by David R. Knowles, Wegan, Hessler & Vanderburg Rockside Woods Boulevard, Suite 200, Cleveland, hio Within 10

13 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 11 of 16. PageID #: 4260 ninety (90) days of such training, a list of the naes, job titles, and work locations of attendees and all written aterials fro the training shall be subitted to EEC counsel of record for review. RECRD-RETENTIN REQUIREMENTS 27. For the duration of this Decree Defendant shall retain the records described in this Decree. Further, Defendant will retain and provide to EEC as soon as practicable upon deand, any and all docuents or data ade or kept under the Decree. 28. Defendant shall coply with all applicable record-keeping requireents of Title VII and the Coission's regulations, including but not liited to, 29 C.F.R. Parts 1602 and n an annual basis throughout the operation of this Decree, Defendant shall conduct reasonable auditing of its record-retention practices to ensure copliance with this Decree. Defendant shall cure any non-copliance found and proptly report such non-copliance to EEC in writing. NTICE T BE PSTED 30. Within thirty (30) days of entry of this Decree, Defendant shall post copies of the Notice attached as Attachent A in a conspicuous location at the covered facilities at all places where eployee notices are posted and applications are collected. The Notice shall be posted for a period of three (3) years. SUBMISSIN F REPRTS AND NTICES T EEC 31. All notifications and reports required under this Decree shall be ade in writing and shall be sufficient if hand-delivered or sent by express or regular ail to Jeffrey A. Stern, Senior Trial Attorney, Equal Eployent pportunity Coission, AJC Federal Building, 1240 East Ninth 11

14 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 12 of 16. PageID #: 4261 St., Ste. 3001, Cleveland, H All reports shall be verified by oath or under penalty of perjury. DISPUTE RESLUTIN AND CMPLIANCE 32. Upon otion of the Coission, this Court ay schedule a hearing for the purpose of reviewing copliance with this Consent Decree. Prior to such otion, the Coission shall notify Defendant, in writing, of the alleged non-copliance. Upon receipt of written notice, Defendant shall have fifteen (15) days to either correct the alleged violation, and so infor the Coission, or deny the alleged violation, in writing; (a) If the parties reain in dispute they shall attept in good faith to resolve their dispute; (b) If the parties cannot resolve their dispute in good faith, the Coission ay file a otion with the Court seeking reedies for the alleged non-copliance and for Defendants to show cause why they should not be found in contept; (c) Each party shall bear its own costs, expenses and attorney's fees incurred in connection with such otion; and (d) Jurisdiction to resolve any dispute arising under this Decree resides in the United States District Court for the Northern District of hio (Eastern Division). 12

15 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 13 of 16. PageID #: 4262 IT IS AGREED: EQUAL EMPLYMENT PPRTUNITY CMMISSIN P. DAVID LPEZ General Counsel JAMES L. LEE Deputy General Counsel GWENDLYN YQUNG REAMS Associate General Cou-pel / PRESRITE CRPRATIN GERGE LNGAUER Executive Vice President and Chief Financial fficer Dated: ZZw^x^-*' DEBRA M. LAWRENCE Regional Attorney EEC-Philadelphia District ffice City Crescent Building, 3 Floor 10 S. Howard St. Baltiore, MD Tel (410) Fax (410) ^TE NRTHRUP Supervisory Trial Attorney Baltiore Field ffice Tel (410) Fax (410) JICHLAS D. SATULL CHRISTINE SANTNI STEPHANIE S. HATFIAWAY REMINGER C., L.P.A. 101 Prospect Avenue West, Ste Cleveland, H Tel. (216) Fax (216) Counsel for Presrite Corporation JEFFREY A. STERN Senior Trial Attorney EEC-Cleveland Field ffice MELANIE PETERSN KEY ANA LAWS Trial Attorneys EEC-Philadephia District ffice Dated: M 7-^ S RDERED; /s/ Patricia A. Gaughan HNRABLE PATRICIA A. GAUGHAN United States District Court Judge 13 Dated: April 24, 2013

16 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 14 of 16. PageID #: 4263 PRESRITE CRPRATIN PRDUCTIN PRESS FRGINGS 3665 EAST 78th STREET CLEVELAND, HI TELEPHNE: 216/ MAIN FAX: 216/ c Notice to Applicants, Eployers and Teporary Workers It is unlawful eployent practice for an eployer: To refuse to hire or otherwise discriinate against a person because of his/her race, national origin, sex, color, religion, age (over 40), pregnancy, disability (as defined by the Aerican with Disabilities Act) or retaliate because of his/her protected activities. Presrite and its eployees will not engage in any type of illegal discriination. Presrite and its eployees will not and do not retaliate in any anner against any person because of opposition to any practice declared unlawful under the federal antidiscriination laws. Presrite is an Equal pportunity Eployer. Any applicant, eployee, or teporary eployee has the right, and is encouraged to exercise the right, to report allegations of eployent discriination in the workplace. Reports of discriination ay be ade to Presrite anageent (216) and/or to the EEC. EEC ay be reached as (216) , (TTY ) or and additional inforation about EEC is available at George Prucha^ Director, Huan Resources Presrite Corporation Date ~^-Xc=~\3

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18 Case: 1:11-cv PAG Doc #: 109 Filed: 04/24/13 16 of 16. PageID #: 4265 c_ i o CD 03 ti w H Z w H Z D SI oo w o Z a 73 H 2 -n en H o Z a "D i - a Tl 73 < 73 en i c C