Opinion
Civil Action No. C2-01-0094
January 7, 2002
CONSENT DECREE
The United States Equal Employment Opportunity Commission (the "Commission" or "EEOC") filed this action against the Defendant, Wal-Mart Stores Inc., dba Wal-Mart Distribution Center ("Wal-Mart") to enforce Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("the ADA") and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The Commission's Complaint alleges that Wal-Mart violated the ADA by denying a reasonable accommodation to Ruthie Gilmore and other deaf employees and applicants.
On or about July 20, 2001, Ruthie Gilmore moved to intervene. On August 31, 2001, Wal-Mart filed a Notice of Non-Opposition. On October 24, 2001, the Intervenor Complaint was transferred to and consolidated with the subject action when the Court signed an Agreed Entry to that effect. On September 18, 2001, Wal-Mart filed an answer to the Intervenor's Complaint.
The Commission's Complaint and the Complaint in Intervention seek to recover backpay, front pay, compensatory damages, punitive damages, and injunctive relief.
As a result of the parties having engaged in settlement negotiations, the parties agreed that this action should be finally resolved by entry of this Consent Decree. This case and twelve other ADA cases brought by the EEOC against Wal-Mart are being settled by separate consent decrees in conjunction with the settlement of EEOC v. Wal-Mart Stores, Inc., Civil Action No. S99-0414 GEB DAD (E.D. Cal.) (the "California Decree"), which includes nationwide equitable relief. This Consent Decree was entered into by the parties as an amicable way of resolving all outstanding differences that may have existed in this case. This Consent Decree is intended and does fully and finally resolve any and all claims arising out of the Complaint filed by the EEOC and the Complaint in Intervention.
The parties do not object to the jurisdiction of the Court over this action and waive a hearing and the Entry of Findings of Fact and Conclusions of Law.
I FINDINGS
It is ORDERED, ADJUDGED AND DECREED:
Having examined the terms and provisions of this Consent Decree and based on the pleadings, record, and stipulations of the parties, the Court finds the following:
1. This Consent Decree resolves all claims arising out of the issues between the parties in this law suit, including, without limitation, back pay, compensatory and punitive damages, injunctive relief, costs, and attorney's fees.
2. The Court has jurisdiction of the subject matter of this action and of the parties.
3. The terms and provisions of this Consent Decree are adequate, fair, reasonable, equitable, and just. The rights of the parties are adequately protected by this Consent Decree.
4. This Consent Decree conforms with the Federal Rules of Civil Procedure and the ADA and is not in derogation of the rights and privileges of any person. The entry of this Consent Decree will further the objectives of the ADA and will be in the best interests of Wal-Mart, the Commission, the Intervenor and the public.
II NON-DISCRIMINATION
5. In all matters arising from or relating to employment, Wal-Mart and its officers, agents, employees, successors, and assigns, and all of those in active concert or participation with them, or any of them, shall not engage in any employment practice which unlawfully discriminates against an employee or applicant covered under the Americans with Disabilities Act. Prohibited discrimination includes, but is not limited to:
a. refusing to hire or rehire a qualified individual with a disability because of his/her disability;
b. refusing to provide a reasonable accommodation to a qualified individual with a disability;
c. discharging a qualified individual with a disability because of his/her disability;
d. maintaining any practice or policy that violates the ADA by depriving or tending to deprive any individual of employment opportunities because of such individual's disability;
e. discriminating against persons on the basis of their disabilities in the terms and conditions of their employment; and
f. making illegal pre-employment medical inquiries.
III NON-RETALIATION
6. Wal-Mart, its officers, agents, employees, successors, assigns, and all those in active concert or participation with them, or any of them, shall not engage in reprisal or retaliation of any kind against any person because such person:
a. opposed any practice made unlawful under the ADA;
b. filed a charge of discrimination with the Commission or a state agency or testified or participated in any manner in any investigation, proceeding or hearing under the ADA;
c. requested and/or received relief in accordance with this Consent Decree;
d. participated in any manner in this action or in the investigation giving rise to this action; or
e. asserted any rights under this Consent Decree.
IV JOB OFFER — RUTHIE GILMORE
7. Within thirty (30) days from entry of this Decree, Wal-Mart agrees to offer employment to Ms. Gilmore at the Wal-Mart facility in Circleville, Ohio in the job of cashier, stocker or inventory controller, commensurate with her availability, skills and abilities. Gilmore shall have thirty (30) days from the date of the job offer to accept the job offer. Wal-Mart agrees to provide all reasonable accommodations to Gilmore. Gilmore will be awarded her original effective corporate service date and this date will be the basis for determining her entitlement to wages and benefits, consistent with all applicable Wal-Mart policies and procedures for hourly employees. Wal-Mart agrees to enroll Gilmore in any and all benefits, including but not limited to health and dental benefits effective the first day of her new employment.
8. On the first day, or before, of Ms. Gilmore's new employment, Wal-Mart agrees to meet with Ms. Gilmore, at the facility where she is or will be working, to engage in an interactive dialogue between Ms. Gilmore and a member of management for the purpose of preparing a written individualized assessment of Ms. Gilmore's accommodation requirements regarding her deafness. A member of management will prepare the written assessment which may be in the form of notes. The parties agree that the written assessment is not a contract but an informal tool to help assist in reasonably accommodating Ms. Gilmore. At such meeting, Wal-Mart will provide at its expense, a qualified American Sign Language (ASL) interpreter. For the duration of her employment, Wal-Mart shall provide a qualified ASL interpreter for Ms. Gilmore for all employment orientation sessions, significant staff meetings, significant personnel issues and any training required for her job. Significant personnel issues may include, without limitation, any action which may result in termination, demotion, transfer or reduction in pay or benefits.
9. On a case by case basis and except on those occasions described in paragraph 8, Wal-Mart may accommodate Ms. Gilmore by using written notes; providing written material to Ms. Gilmore to read and ask questions; by providing a Wal-Mart employee as an interpreter; or any other accommodation: Provided, however, that any such accommodation is effective and that Wal-Mart consults with Ms. Gilmore in determining whether any such accommodation is effective.
V JOB OFFERS — OTHERS
10. Within thirty (30) days of the date of the entry of this Decree, Wal-Mart shall offer Stephan Salzano employment at the Grove City, Ohio, Distribution Center, in the job he last held at Wal-Mart in approximately August, 2000, at a wage equal to the wage to which Salzano would have been entitled if he had continued employment and not resigned on or about August, 2000. Salzano shall have thirty (30) days from the date of the job offer to accept the job offer.
11. After completion of the 90 day probationary period, Stephen Salzano will be awarded an effective corporate service date (CSD) equal to his CSD at the time of his resignation on or about August, 2000. This CSD will be the basis for determining Salzano's entitlement to wages and benefits, consistent with all applicable Wal-Mart policies and procedures for hourly employees. Wal-Mart shall enroll Salzano in any and all benefits, including but not limited to health and dental benefits effective the first day of employment.
12. Within thirty (30) days of the date of the entry of this Decree, Wal-Mart shall offer Billy Montoney employment at the Grove City, Ohio, Distribution Center, in a job for which he is qualified at a wage equal to the wage to which he would have received if he had been hired based on the date of his earliest application to the Grove City, Ohio, Distribution Center. Montoney shall have thirty (30) days from the date of the job offer to accept the job offer.
13. After completion of the 90 day probationary period, Billy Montoney will be awarded an effective corporate service date (CSD) equal to the date of his earliest application to the Grove City, Ohio, Distribution Center. This CSD will be the basis for determining Montoney's entitlement to wages and benefits, consistent with all applicable Wal-Mart policies and procedures for hourly employees. Wal-Mart shall enroll Montoney in any and all benefits, including but not limited to health and dental benefits effective the first day of employment.
14. On the first day, or before, of the employment of Salzano and Montoney, Wal-Mart agrees to meet individually with Salzano and Montoney, at the Grove City, Ohio, Distribution Center to engage in an interactive dialogue with each and a member of management for the purpose of preparing a written individualized assessment of each such person's accommodation requirements regarding their deafness. A member of management will prepare the written assessment which may be in the form of notes. The parties agree that the written assessment is not a contract but an informal tool to help assist in reasonably accommodating Salzano and Montoney. At such meeting, Wal-Mart will provide at its expense a qualified American Sign Language (ASL) interpreter. For the duration of their employment, Wal-Mart shall provide a qualified ASL interpreter for Salzano and Montoney for all employment orientation sessions, significant staff meetings significant personnel issues and any training required for their jobs. Significant personnel issues may include, without limitation, any action which may result in termination, demotion, transfer or reduction in pay or benefits.
15. On a case by case basis and except on those occasions described in paragraph 14, Wal-Mart may accommodate Mr. Salzano and Mr. Montoney by using written notes; providing written material to such person to read and ask questions; by providing a Wal-Mart employee as an interpreter or any other accommodation: Provided, however, that any such accommodation is effective and that Wal-Mart consults with Salzano and Montoney in determining whether any such accommodation is effective.
VI MONETARY RELIEF FOR RUTHIE GILMORE
16. Within fifteen (15) days after this Decree is approved by the Court, Wal-Mart shall make payment in the form of a business check, cashier's check, or certified check made payable to Ruthie Gilmore in the gross amount of $127,654.27 for compensatory damages, and will send a copy of the check to John D. Sargent, Supervisory Trial Attorney, EEOC, Tower City — Skylight Office Tower, 1660 W. 2nd St., Suite 850, Cleveland, Ohio, 44113-1412
VII MONETARY RELIEF FOR OTHERS: STEPHEN SALZANO JOSEPH OWENS ANITA OWENS KEVIN NERSINGER BILLY MONTONEY ROBERT GIBBONS
17. Within fifteen (15) days after this Decree is approved by the Court, Wal-Mart shall make payment in the form of a business check, cashier's check, or certified check made payable to Stephen Salzano in the gross amount of $116,049.34 for compensatory damages, and will send a copy of the check to John D. Sargent, Supervisory Trial Attorney, EEOC, Tower City — Skylight Office Tower, 1660 W. 2nd St., Suite 850, Cleveland, Ohio, 44113-1412.
18. Within fifteen (15) days after this Decree is approved by the Court, Wal-Mart shall make payment in the form of a business check, cashier's check, or certified check made payable to Joseph Owens in the gross amount of $69,629.60 for compensatory damages, and will send a copy of the check to John D. Sargent, Supervisory Trial Attorney, EEOC, Tower City — Skylight Office Tower, 1660 W. 2nd St., Suite 850, Cleveland, Ohio, 44113-1412.
19. Within fifteen (15) days after this Decree is approved by the Court, Wal-Mart shall make payment in the form of a business check, cashier's check, or certified check made payable to Anita Owens in the gross amount of $95,740.70 for compensatory damages, and will send a copy of the check to John D. Sargent, Supervisory Trial Attorney, EEOC, Tower City — Skylight Office Tower, 1660 W. 2nd St., Suite 850, Cleveland, Ohio, 44113-1412.
20. Within fifteen (15) days after this Decree is approved by the Court, Wal-Mart shall make payment in the form of a business check, cashier's check, or certified check made payable to Kevin Nersinger, in the gross amount of $129,049.34 including:
a. $11,000 for backpay, less only any applicable deductions for the employee's portion of FICA and applicable federal and state income tax withholdings;
b. $2,000 for interest on the backpay, less only the applicable federal and state income tax withholdings;
c. $116,049.34 for compensatory damages.
At the time of payment, Wal-Mart will send a copy of the check to John D. Sargent, Supervisory Trial Attorney, EEOC, Tower City — Skylight Office Tower, 1660 W. 2nd St., Suite 850, Cleveland, Ohio, 44113-1412.
21. Within fifteen (15) days after this Decree is approved by the Court, Wal-Mart shall make payment in the form of a business check, cashier's check, or certified check made payable to Billy Montoney in the gross amount of $92,839.47 for compensatory damages, and will send a copy of the check to John D. Sargent, Supervisory Trial Attorney, EEOC, Tower City — Skylight Office Tower, 1660 W. 2nd St., Suite 850, Cleveland, Ohio, 44113-1412.
22. Within fifteen (15) days after this Decree is approved by the Court, Wal-Mart shall make payment in the form of a business check, cashier's check, or certified check made payable to Robert Gibbons in the gross amount of $78,333.30 for compensatory damages, and will send a copy of the check to John D. Sargent, Supervisory Trial Attorney, EEOC, Tower City — Skylight Office Tower, 1660 W. 2nd St., Suite 850, Cleveland, Ohio, 44113-1412.
VIII DEAF AND/OR HEARING IMPAIRED EMPLOYEES
23. Within thirty (30) days of entry of this Decree, Wal-Mart shall notify each deaf and/or hearing impaired employee at the Grove City, Ohio, Distribution Center that such employee may request an individualized assessment with a member of management to determine effective reasonable accommodations and that Wal-Mart will, if requested, provide a qualified ASL interpreter, at Wal-Mart's expense, for such individualized assessment.
24. Wal-Mart agrees to provide at its expense a qualified ASL Interpreter as a reasonable accommodation at the Grove City, Ohio, Distribution Center as needed and in consultation with the deaf or hearing impaired employee(s) for all employment orientation sessions, significant staff meetings, significant personnel issues and any training required for their respective jobs. Significant personnel issues may include, without limitation, any action which may result in termination, demotion, transfer or reduction in pay or benefits.
IX DEAF AND/OR HEARING IMPAIRED APPLICANTS/NEW EMPLOYEES
25. Within ten (10) days of the entry of this Decree, Wal-Mart agrees to post a notice in a conspicuous location at the Grove City, Ohio, Distribution Center reading: "Please advise us if you need assistance in the application or hiring process to accommodate a disability. If you request, Wal-Mart will provide a qualified ASL interpreter during the hiring process."
26. Wal-Mart further agrees to provide written notification to anyone obtaining a job application at the Grove City, Ohio, Distribution Center stating: "Please advise us if you need assistance in the application or hiring process to accommodate a disability. If you request, Wal-Mart will provide a qualified ASL interpreter during the hiring process."
X INTERPRETIVE SERVICES
27. It is expressly agreed by the parties that for purposes of providing a qualified ASL Interpreter pursuant to this Decree, the following organization is one source of qualified interpreters:
Deaf Services Center 5830 N. High St. Worthington OH 43085 Voice/TTY: (614) 841-1991 Fax: (614) 841-1118
XI EMPLOYMENT PRACTICES AND TRAINING
28. As outlined above, the parties to this Consent Decree have agreed to the entry of the California Decree to resolve certain nationwide issues. In the California Decree, the parties agreed that Wal-Mart, on a nationwide basis, would not engage in any employment practice which violates the ADA, not retaliate against any person who exercises rights under the ADA, make monetary payments to individuals adversely affected by Wal-Mart's disability related inquiries before job offers were made, establish an ADA Coordinator position, revise its ADA Policies and Procedures, establish Reasonable Accommodation Procedures, appoint a Special Master, abolish the Matrix of Essential Job Functions within six months, post notices nationwide, include an ADA component in its periodic personnel audits, include ADA compliance in managers' and applicable human resource associates' performance evaluations, maintain employee record information, and make annual reports to the EEOC and the Special Master concerning its compliance with the Consent Decree and the ADA.In the California Decree, the parties also agreed that Wal-Mart will provide nationwide training to all managers, supervisors and people involved in hiring committees concerning the requirements of the ADA. The training will include: an interactive component; an overview of the ADA; Wal-Mart's obligations under the ADA; applicant and employee rights under the ADA; non-discrimination in hiring and recruitment; reasonable accommodation in the application and hiring process; procedures for addressing reasonable accommodation requests in the application and hiring process; examples of accommodations in the application and hiring process for people with disabilities, including people who are deaf or hearing impaired; awareness of issues affecting employees and applicants who have disabilities; that any decision about undue hardship in the provision of a reasonable accommodation shall be made by the ADA Coordinator; that any employee may appeal a denial of a reasonable accommodation to the ADA Coordinator; Wal-Mart's commitment to meeting the requirements of the ADA; and, Wal-Mart's commitment to engage in the interactive process required by the ADA for qualified individuals with disabilities to determine an appropriate accommodation at the time a potential employee applies for a position with Wal-Mart, after Wal-Mart hires an employee, and during an employee's period of employment with Wal-Mart.
The parties agree and understand that any issue related to Wal-Mart's compliance with the provisions of the California Decree shall be decided by the California Court.
29. Within ninety (90) days of entry of this Consent, Wal-Mart agrees to provide the ADA training described in paragraph 28 for its management and hiring committee employees at the Grove City, Ohio, Distribution Center.
30. Wal-Mart agrees to invite a Commission representative to attend all ADA training sessions described in paragraph 29 by sending a written invitation to the Regional Attorney of the Cleveland District Office, Tower City — Skylight Office Tower, 1660 W. 2nd St. — Suite 850, Cleveland OH, 44113-1412 least ten (10) days prior to the training.
XII REPORTS
31. On the first and second anniversary dates after entry of this Decree, Wal-Mart shall serve a report on the Regional Attorney of the EEOC's Cleveland District Office, containing the following information:
a. The name, address, phone number of every deaf or hearing impaired applicant who applied for work with the Grove City, Ohio, Wal-Mart Distribution Center during the reporting period.
b. The name, address, phone number of every deaf or hearing impaired employee of the Grove City, Ohio, Wal-Mart Distribution Center during the reporting period.
XIII COMPLIANCE
32. In the event that the Commission believes that Wal-Mart has failed to comply with any provisions(s) of the Consent Decree, it shall:
a. notify Wal-Mart in writing of the alleged non-compliance by fax and by overnight mail to all counsel of record and the Office of Wal-Mart's ADA Coordinator, as earlier referenced;
b. afford Wal-Mart forty-five (45) business days, after service of notice to remedy the non-compliance.
33. If Wal-Mart has not remedied the alleged non-compliance within forty-five (45) business days, the EEOC may petition the Court to enforce the terms of this Consent Decree at any time during which this Court maintains jurisdiction over this action.
34. In the event the Court finds that Wal-Mart has violated this Consent Decree, the Court may order appropriate relief to remedy the non-compliance, including attorneys' fees, daily fines, and appropriate injunctive relief.
35. Within thirty (30) days of the entry of this Decree, Wal-Mart shall post the Notice attached as Exhibit A in the Grove City, Ohio, Distribution Center and the store which employs Ms. Gilmore. The Notice shall be posted in the same approximate locations as the other labor and employment postings for the duration of this Consent Decree. The Notice shall be the same type, size, and style as Exhibit A.
XIV DURATION OF CONSENT DECREE
36. This Court shall retain jurisdiction of this action for a period of two (2) years and six (6) months after entry of the Consent Decree. This Consent Decree shall expire by its own terms at the end of two (2) years and six (6) months without further action by the parties.
XV COSTS
37. Within fifteen (15) days after entry of this Decree, Wal-Mart shall reimburse counsel for Intervenor, Ruthie Gilmore, Sam N. Lillard, his reasonable costs and attorney fees in the amount of $38,000 at the following address:
Samuel N. Lillard, Esq. Law Offices of Mowery Youell 425 Metro Place N. #420 Dublin, Ohio 43017
XVI EDUCATIONAL AND OUTREACH ACTIVITIES
38. in accordance with the Commission's powers under Section 705 of the Civil Rights Act of 1964, as amended, Wal-Mart Stores, Inc. expressly consents to cooperate with the Commission in order to "carry out educational and outreach activities" targeted to individuals protected by the federal anti-discrimination laws concerning rights and obligations under those laws. 42 U.S.C. § 2000e — 4(g)(1), (h)(2).EXHIBIT A — NOTICE OF SETTLEMENT
This Notice is being posted pursuant to a Consent Decree voluntarily entered into by the Grove City Wal-Mart Distribution Center ("Wal-Mart") and the Equal Employment Opportunity Commission ("EEOC") in connection to the settlement in the case entitled EEOC v. Wal-Mart, Inc., dba Wal-Mart Distribution Center, Case No. C2-01-0094 (S.D. Ohio).
The lawsuit alleged that Wal-Mart failed to accommodate deaf or hearing impaired applicants and employees in violation of the Americans With Disabilities Act (ADA). Wal-Mart denies any wrongdoing.
Under the terms of the Consent Decree, Wal-Mart has agreed to:
1. Not engage in any employment practice which violates the ADA;
2. Not retaliate against any person who exercises his or her rights under the ADA;
3. Make monetary payments to the affected associates and applicants;
4. Provide training to all managers and supervisors and people on hiring committees concerning the requirements of the ADA;
5. Revise its ADA Policies and Procedures; and
6. Post this Notice
Federal law prohibits covered employers from discriminating against any employee or applicant for employment on the basis of disability, sex, race, color, national origin, or age, and from retaliation. Should you have any complaints of discrimination or retaliation, you can contact the EEOC. EEOC charges no fee for their services and has employees who speak languages other than English.
Dated: 1/7/02