Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 1 of 10 PageID #:2016

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1 Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 1 of 10 PageID #:2016 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS Equal Employment Opportunity ) Commission, ) Plaintiff, ) Case No: 09 C 5637 ) v. ) ) Judge Ronald A. Guzmán Supervalu, Inc., American Drug Stores, ) Jewel Food Stores, Inc., ) Defendants. ) ORDER For the reasons stated below, Defendants objections [235] are overruled in part and sustained in part. The Court sustains Defendants challenge to the appointment of a special master, the date from which the one-year extension of the consent decree shall begin and the provisions that are to be extended, and adopts the rest of the Report and Recommendation [229]. Plaintiff s motion for contempt [160] is granted as discussed herein. Plaintiff is directed to file a proposed order no later than December 5, 2014 setting forth all of the Court s directives as stated herein. STATEMENT The Court assumes familiarity with the facts of the case and its past orders. Briefly, the Equal Employment Opportunity Commission ( EEOC ) and Supervalu, Inc., Jewel Food Stores, LLC and American Drug Stores, LLC ( Defendants ) entered into a consent decree after the EEOC sued Defendants, alleging violations of the Americans with Disabilities Act ( ADA ). The consent decree, in relevant part, enjoined Jewel from discriminating on the basis of disability by not providing reasonable accommodation(s) to persons desiring to return to work from a disability leave. (Consent Decree, Dkt. # 148, 5.) On March 26, 2012, the EEOC filed a motion for contempt and discovery based in part on Defendants' failure to abide by this provision. After

2 Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 2 of 10 PageID #:2017 referring the motion to the magistrate judge, this Court sustained in part and overruled in part the magistrate judge's recommendations and referred the matter back to the magistrate judge to oversee discovery and conduct evidentiary hearings, as necessary, with respect to the alleged violations. Subsequent to overseeing limited discovery and conducting evidentiary hearings, the magistrate judge issued a 51-page Report and Recommendation ( R&R ) recommending that this Court grant the EEOC's motion and find Defendants in contempt for violating 5 of the consent decree, impose compensatory and coercive sanctions, extend the term of the consent decree for one year, appoint a special master to be paid for by Defendants to ensure ongoing compliance with the consent decree, and order Defendants to pay the EEOC's reasonable costs and fees in bringing the contempt motion. (R&R, Dkt. # 229, at 50.) The EEOC's motion and the magistrate judge's recommendation specifically addressed the treatment of three former employees: Irene Pillie, Darsheta Epting, and Brooke Groszek. According to the EEOC, Defendants violated the consent decree when they failed to return these employees to work after their respective disability leaves. Defendants filed timely objections to the R&R. A party seeking contempt sanctions for violation of a court order must show by clear and convincing evidence that: (1) a court order sets forth an unambiguous command; (2) the alleged contemnor violated that command; (3) the violation was significant, meaning the alleged contemnor did not substantially comply with the order; and (4) the alleged contemnor failed to make a reasonable and diligent effort to comply. United States v. SEC, 621 F.3d 687, 692 (7th Cir. 2010). Defendants first contend that the magistrate judge disregarded the clear and convincing standard. The Court disagrees. The magistrate judge not only set forth the proper standard on a motion for contempt (R&R, Dkt. # 229, at 38), but he laid out in detail the testimony of the witnesses and the documentary evidence 2

3 Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 3 of 10 PageID #:2018 presented. After doing so, he stated that: the documentary evidence and testimony make clear that Pillie, Epting, and Groszek all asked to be returned to work after disability leave, that they presented restrictions, thereby triggering the interactive process, and that, ultimately, the company refused to allow them to return to work with or without reasonable accommodations. (Id. at 39.) Defendants contend that the magistrate judge treated the three claimants testimony as true and ignored the company's opposing testimony and contemporaneous documentary evidence. As an initial matter, it is not this Court s job to reconsider the magistrate judge s credibility determinations. Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) ( The district court is not required to conduct another hearing to review the magistrate judge's findings or credibility determinations. ). Moreover, while Pillie informed the Medical Accommodations Administration Team ( MAAT ) that she did not think she w[ould] be returning (JX58 at JEWEL_OSCO ), this was in November 2010, after she had been told that no positions that would accommodate her restrictions were available. (Id. at JEWEL_OSCO ) As noted by the magistrate judge, Sharon Rosy, a Medical Accommodations Administrator for Jewel, testified that from the time Pillie presented her return to work paperwork to defendants until the time she was terminated, no one from the MAAT ever contacted anyone at the store where Pillie had worked to see if any additional scanner positions had opened up or if any other stores had open scanner positions. (Tr. at ) Further, according to Rosy, with the exception of checking one time to see if there were any open scan coordinator positions in one store, the company did not look for or consider open positions for Pillie, despite Pillie's testimony that she told Jewel she was willing to work in a different store or in a different position. (Id. at 99, 133.) Regarding Groszek, Defendants point out that Groszek testified that all jobs within the store were physically difficult and she had gone back to school in the hopes of obtaining a position that 3

4 Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 4 of 10 PageID #:2019 was not physical. (Id at 455.) But the magistrate judge relied on Rosy's testimony that while Groszek submitted her return to work paperwork in February 2011, no one from Jewel contacted Groszek about her restrictions and instead, Jewel notified her that she would be terminated if she did not return to work by March 1, (Id. at 366, ) Indeed, no one contacted Groszek until April 15, 2011, a month and a half after her termination date. In discussing Groszek's return to work, Rosy did not propose any other jobs that Groszek could do in the store nor did she explore any accommodation options that Groszek did not bring up. (Id. at 371, 454.) As noted by the EEOC, [o]nce [the employer] received notice of [the employee's] disability... it was incumbent upon [the employer] to determine by engaging in the interactive process with [the employee], whether or not a reasonable accommodation could be made. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, (7th Cir. 2014) (citing 29 C.F.R ). The Court concludes that the magistrate judge applied the proper standard in determining that Defendants violated the consent decree by not accommodating these three employees. The fact that the magistrate judge did not expressly use the words fail to substantially comply does not persuade the Court otherwise. It is clear from the magistrate judge's R&R that he found Defendants failed to substantially comply with the consent decree as to these three employees, noting that: [T]he evidence shows that, in making the determination that these employees could not be accommodated, the company disregarded its own interactive process guidelines, failed to even consider the myriad resources available (at no cost or at minimal cost) to assist it in identifying or fashioning reasonable accommodations for these employees, and failed to consider reassignment. (R&R, Dkt. # 229, at 39.) Even as to other employees, Rosy never explored the possibility of using assistive lifting devices for those who had lifting restrictions. (Tr ) She further testified that it was Jewel's policy not to consider transferring part-time employees seeking accommodations to 4

5 Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 5 of 10 PageID #:2020 other store locations based on her assumption that a person would rather be terminated than considered for an open position at another store. (Id. at ) Defendants contention that the magistrate judge misconstrued the purpose of the interactive process and improperly shifted the burden to the employer is also unsupported. While it is true that an employer need only make a reasonable effort to explore accommodation possibilities, see Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998), the employer has a duty under the [ADA] to ascertain whether he has some job that the employee may be able to fill. Miller v. Ill. Dep't Corr., 107 F.3d 483, (7th Cir. 1997). Indeed, [i]f a minor adjustment in the work duties of a couple of other employees would have enabled the plaintiff despite her disability to perform the essential duties of her job..., the [employer s] refusal to consider making such an adjustment was unlawful. Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958, 963 (7th Cir. 2014). The evidence presented at the hearing demonstrated that Jewel did not look for or consider open positions or minor adjustments. (Pl. s Facts 104, 105, 250, 251, 258, , 361, 369.) The Court rejects as unsupported Defendants position that the employees were responsible for the breakdown in the interactive process. (R&R, Dkt. # 229, at 41-42) (noting that the MAAT did not even contact Groszek until after she had been terminated, Rosy told Pillie that her home store did not have any open scan coordinator positions.... [a]nd that was the end of the matter, and that Rosy never offered Epting anything else in the way of accommodation ). Moreover, Rosy testified that the company s guidelines place the burden on Jewel to find a reasonable accommodation. (Id. at 14) (testifying that to trigger the interactive process required under the Consent Decree, an employee who was out on disability leave simply had to request to return to work and present restrictions and that once the interactive process was triggered, the company's 5

6 Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 6 of 10 PageID #:2021 guidelines provided that the company should then collect information from the employee and his or her health care providers as well as information regarding possible reassignments ). Ultimately, the magistrate judge concluded that the documentary evidence and testimony make it clear that Pillie, Epting, and Groszek all asked to be returned to work after disability leave, theat they presented restrictions, thereby triggering the Company s interactive process, and that ultimately, the Company refused to allow them to return to work with or without an accommodation. (R&R, Dkt. # 148, at 39.) The Court finds no error in this conclusion based on Defendants objections. Defendants next assert that there is no factual or legal basis for the coercive relief recommended. As noted by another court in this circuit: Sanctions for civil contempt are designed either to compel the contemnor into compliance with an existing court order or to compensate the complainant for losses sustained as a result of the contumacy. Remedial sanctions compensate the complainant for his losses caused by the contemptuous conduct. Coercive sanctions aim to coerce the contemnor's compliance with a court order. A coercive sanction must afford the contemnor the opportunity to purge, to avoid punishment by complying with the order. Lightspeed Media Corp. v. Smith, No. 3:12 cv 889 DRH SCW, 2014 WL , at *4 (S.D. Ill. Mar. 24, 2014) (internal quotation marks and citations omitted). As to the coercive sanctions, the magistrate judge rejected the EEOC's request for fines but agreed that the appointment of a special master, to be paid by Defendants, is appropriate to review 1 To the extent that Defendants fault the R&R for chastising the company for not relying on the report of Paul Schwartz, the accommodations expert agreed to by the parties in the consent decree, even though the report was issued after the decisions at issue, the Court does not construe this aspect of the R&R to be a basis for the magistrate judge's conclusion that violations occurred. Therefore, the Court need not address this aspect of the Defendants' objection. 6

7 Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 7 of 10 PageID #:2022 the decisions of the company and ensure compliance with the consent decree. The magistrate judge also recommended that the term of the consent decree be extended for one year from the date of the R&R to ensure that the company is meeting its obligations, and as an added incentive to prevent future violations, require that Defendants be required to pay the EEOC s reasonable fees and costs in bringing and prosecuting the motion for contempt. (R&R, Dkt. # 229, at 50.) Defendants assert that the imposition of a special master is not a proper coercive sanction as it is not purgeable. See FTC v. Trudeau, 579 F.3d 754, 777 (7th Cir. 2009) (sanctions that operate[] whether or not the [company] remains in violation of the order do not coerce compliance). The EEOC argues that the appointment of a special master is not a punitive or coercive measure but is permissible under Federal Rule of Civil Procedure 53, which allows the appointment of a special master to make or recommend findings of fact on issues to be decided without a jury if appointment is warranted by: (i) some exceptional condition.... The Court agrees that it may properly appoint a special master to monitor compliance with the consent decree. See Fed. R. Civ. Proc. 53, 2003 Amendment notes, Pre-trial and Post-Trial Matters ( Reliance on a master is appropriate when a complex decree requires complex policing, particularly when a party has proved resistant or intransigent. ). Nevertheless, the Court respectfully disagrees with the magistrate judge's recommendation to appoint a special master at this time. As noted by the magistrate judge, after sitting through a three-day hearing on Defendants failure to comply with certain aspects of the consent decree, he found overwhelming evidence that the company did not 2 The consent decree expired by its own terms on January 3, 2014; however, the Decree has remained in effect pursuant to 40, which provides that during a dispute all provisions of this Decree shall be in effect until the dispute is resolved. (Consent Decree, Dkt. # 148, 40.) 7

8 Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 8 of 10 PageID #:2023 do what it was supposed to do under the Decree. (R&R, Dkt. # 229, at 46.) However, the EEOC has done a commendable job in monitoring Defendants compliance with the consent decree and the Court can discern no basis on which to conclude that its continued oversight would be insufficient. Defendants further object to the recommendation that the consent decree be extended for one year, contending that no significant change in circumstances has occurred. See Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992) (party seeking modification of consent decree must establish that a significant change in circumstances warrants the revision of the decree ). But in the instant situation, changed circumstances are unnecessary. See Trudeau, 662 F.3d at 952 ( [I]f the FTC proved that the [consent] order was not achieving its purpose, the district court had discretion to modify the decree so as to achieve the required result with all appropriate expedition ) (citation omitted). In light of the magistrate judge's finding that the evidence of noncompliance was overwhelming, the Court concludes that a year extension is appropriate and will ensure that Defendants are complying with the mandates of the ADA as well as their own guidelines. The Court, however, clarifies that the year extension will run from the date of entry of this order and not the R&R. To the extent that Defendants ask that only certain provisions of the consent decree be extended despite the magistrate judge s apparent reference to the terms of the consent decree as a whole, the request is granted. In its post-hearing submission to the magistrate judge, the EEOC asked the Court to: extend the obligations of Paragraph 5 of the Consent Decree for another year... and, as a corollary, Jewel-Osco s reporting and record-keeping obligations under Paragraphs and 35 of the Consent Decree should be extended so that compliance can be monitored. 8

9 Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 9 of 10 PageID #:2024 Based on the EEOC s express request, the Court concludes that these provisions of the consent decree shall be extended for the additional year. To the extent that the parties discuss interim reports that have not been filed to date, this issue was not raised before the magistrate judge and will not be addressed here. As to the requirement that Defendants pay the EEOC s reasonable fees and costs for bringing and pursuing the instant motion for contempt, the Court overrules Defendants' objection that it is improper as a coercive sanction because it is not purgeable. The Seventh Circuit has stated that [u]pon a finding of civil contempt, a court may, at its discretion, order reimbursement of the complainant, as part of the civil relief, of the party's fees and expenses incurred in bringing the violation to the court's attention. Commodity Futures Trading Comm n v. Premex, Inc., 655 F.2d 779, (7th Cir. 1981). See also Am. Fletcher Mortg. Co., Inc. v. Bass, 688 F.2d 513, 517 (7th Cir. 1982) ( The district court may find a defendant in civil contempt if he has not been reasonably diligent and energetic in attempting to accomplish what was ordered. ) (internal citations and quotations marks omitted). The Court finds an award of reasonable fees and expenses to be appropriate in this case given Defendants failure to seek alternative positions for the employees discussed above or explore the use of assistive devices, as well as the important governmental and societal interest in ensuring that covered employers abide by the terms of the ADA. Defendants challenge to the rate of pay used by the magistrate judge for the backpay awards is denied as they failed to challenge the wage rates put forth by the EEOC in front of the magistrate judge. See United States v. Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000) ( Ordinarily, arguments raised for the first time in an objection to a report and recommendation are waived. ) In conclusion, the motion for contempt is granted. Defendants are directed to pay the 9

10 Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 10 of 10 PageID #:2025 reasonable fees and costs the EEOC incurred in bringing and prosecuting the contempt motion. The EEOC shall submit its proposed fees and costs to Defendants no later than January 5, The parties shall meet and confer in person within 10 days of the submission to resolve any disputes regarding the proposed fees and costs. In the event disputes remain, the EEOC shall file a motion for the proposed fees with the Court within 14 days of the meet and confer. Further, the Court orders the terms of the consent decree, as requested by the EEOC in its post-trial submission and set forth above, shall be extended for one year from the date of entry of this order. Finally, the Court awards backpay to Pillie, Epting and Groszek in the amounts specified in the R&R at pages The EEOC is directed to file a proposed order setting forth all of the above no later than December 5, Date: December 2, 2014 Ronald A. Guzmán United States District Judge 10