IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY)
COMMISSION)
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Plaintiff,)
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) Civil Action No.: 1:2006 cv 00747
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) JUDGE LESLEY WELLS
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v.)
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PITT-OHIO EXPRESS, INC.)
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Defendant.)
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CONSENT DECREE
Introduction
1. This action was instituted by the U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission") on March 31, 2006, against Pitt Ohio Express, LLC ("Pitt Ohio") to enforce provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., including the Civil Rights Act of 1991 ("Title VII"). The Commission alleged that Pitt Ohio discriminated against Pamela Moher ("Moher") when it failed to hire her based on her sex, that since September 1, 1997 it discriminated against women in failing to hire them in driver and dockworker positions in its Ohio terminals and engaged in recordkeeping violations. Pitt Ohio denies all of these allegations.
2. This Consent Decree ("Decree") resolves all claims and issues raised in EEOC's Complaint in Civil Action No. 06-cv-00747 (LW).
Findings
3. Having carefully examined the terms and provisions of this Decree, and based on the pleadings, record and stipulations of the parties, but without trial or adjudication of any issues of fact or law raised by EEOC's Complaint the Court finds: (1) it has jurisdiction of the parties and subject matter jurisdiction of this action pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, 1345 and 1367; (2) the terms of this Decree are fair, reasonable, equitable and just, and adequately protect the rights of the parties and the public interest; and (3) this Decree is entered into pursuant to Title VII and the provisions of Title VII will be carried out by implementation of this Decree.
IT IS THEREFORE ORDERED AND DECREED:
4. This Court has jurisdiction over the parties and the subject matter of this action.
5. This Court hereby orders and decrees that neither this Decree nor the fact of a settlement are an admission or concession by Pitt Ohio of any violation of Title VII or of any liability or wrongdoing whatsoever.
6. Nothing in this Consent Decree is intended to or shall be construed to limit the rights of any Claimant or the EEOC to bring an action based on or arising out of events occurring after the date of Approval, or bring an action against any company or entity other than Pitt Ohio, or the EEOC to bring an action not covered by EEOC's Complaint in this case.
7. Pitt Ohio, its officers, agents, employees and all others in active concert with them are enjoined from discriminating in hiring based on sex in violation of Title VII against female applicants for driver and dockworker positions in its Ohio terminals, and from failing to create and maintain records as required by Title VII or regulations issued pursuant to Title VII.
8. Pitt Ohio, it officers, agents, employees and all others in active concert with them shall not retaliate against any female applicants for driver and dockworker positions at its Ohio terminals for participating in this proceeding or otherwise asserting any rights under Title VII in this proceeding.
Monetary Relief
9. In settlement of this action, Pitt Ohio shall pay a total of 2.430 million dollars ($2,430,000), to be distributed amongst Claimants (described in Paragraph 11 below) (“Claim Fund”).
10. In accordance with the terms of the Settlement Agreement, entered into between Moher and Pitt Ohio, Pitt Ohio will pay the amount specified therein in resolution of
Moher's claims. This payment shall be apart and not made from the Claim Fund, and shall be in the nature of compensatory damages and attorney's fees, as specified in the Settlement Agreement. Moher's counsel will provide EEOC a copy of the check and Form 1099 concurrent with providing them to Moher. Moher also will be paid an additional payment from the Claim Fund under the process and in the amount allocated to an Offer Eligible Claimant, as specified in paragraph 14 below, and will be provided a Form 1099 regarding this additional payment according to paragraph 15 below. No additional Release, Questionnaire or Claim Form will be required regarding this additional payment to Moher.
11. “Claimants” are those women, other than Moher, whom EEOC determines applied for, but were not hired for, driver and/or dockworker positions at Pitt Ohio's Cleveland, Columbus, Cincinnati or Toledo terminals between September 1, 1997 and 19 October, 2008. Based on the submitted claim forms, including information received in questionnaires, the EEOC will, in its sole discretion, determine how much each Claimant shall receive from the Claim Fund and which Claimants are Offer Eligible (Section 19). These determinations will be made by EEOC in view of the Claimants’ applications, experience, qualifications and credentials.
12. No later than 30 days after preliminary approval of this Consent Decree, EEOC shall provide notice of the proposed Consent Decree to each Claimant, in a form approved by the Court (Exhibit A), describing the terms of the proposed Consent Decree and requesting that each Claimant provide or update their previously provided information. The Claimant’s information must include (a) whether she still is interested in employment with Pitt Ohio in a driver or dockworker position; (b) a listing of her current qualifications and qualifications at time of application, for driver and dockworker; and (c) which, if any, of the Ohio terminals of Pitt Ohio at which she will accept employment, together with a claim form, release and questionnaire.
13. Within sixty (60) days of such notification, or 90 days from the date the notice, release, claim form and questionnaire were initially mailed, whichever is earlier, each Claimant shall provide EEOC a completed Questionnaire, Claim Form and fully executed release of her claim of hiring discrimination under Title VII as raised in this Complaint. Any Claimant who does not provide a Questionnaire, Claim Form and fully executed release to EEOC by the deadline shall forfeit her share of the Claim Fund. This forfeited share will be reallocated at the sole discretion of EEOC to one or more of those Claimants who have fully executed a release and submitted a Claim Form and Questionnaire.
14. Within thirty (30) days of final approval of the Consent Decree, Defendant shall deposit the sum of 2.430 million dollars ($2,430,000) in a financial institution, which sum will be the Claim Fund. The EEOC will retain a firm to administer the Claim Fund as a Qualified Settlement Fund. Within sixty (60) days of receipt of all executed Claimant releases, Claim Forms and Questionnaires or of final approval of the Consent Decree if approved after receipt of releases, Claim forms and Questionnaires, EEOC shall provide the Claim Fund all such releases and an itemization of the amount that each Claimant is to receive from the Claim Fund. Within ten (10) days of receipt of the releases and the itemization from EEOC, the Claim Fund shall provide the releases to Defendant and shall distribute to Claimants by certified mail with return receipt, at the addresses provided by EEOC, the portion of the Claim Fund specified by EEOC which will be no less than $1,000 for Claimants submitting a valid claim and no less than $20,000 for each Offer Eligible Claimant (Section 19 below). Each payment by the Claim Fund shall be accompanied by documentation showing the name of the Claimant, the gross amount paid, any deductions or adjustments, and any net amount paid and be simultaneously provided to EEOC.
15. The payments to Claimants are for compensatory damages. Based on the lack of any prior employment relationship between Pitt Ohio and the Claimants, the absence of any adjudication of issues raised in the Complaint and Pitt Ohio's payment to the Claim Fund according to the procedures herein as a step in resolving all claims and issues, each Claimant, to whom a payment was made will be provided by the Claim Fund, an IRS Form 1099-MISC for the year in which payment is made, as required by law, directed to the same address to which the check was sent.
16. If any Claimant has died or dies before issuance of or depositing or cashing of her check, the estate, personal representative or heir(s) of that person shall receive the payment that the deceased Claimant otherwise would have received.
17. If any check to a Claimant is returned undelivered or refused, the Claim Fund will promptly notify EEOC in writing, making available to it the envelope or a copy of the envelope in which the check was mailed and any explanation of non-delivery from the U.S. Postal Service including certified mail return receipt. EEOC shall make further reasonable steps to provide those Claimants’ updated addresses to the Claim Fund for a second payment delivery attempt. In the event re-delivery cannot be made or is refused, the Claim Fund shall notify EEOC.
18. If the Claim Fund has been unable to deliver a check to a Claimant as provided above, or a delivered check is not cashed within 30 days of delivery, then the amount attempted to be paid to that Claimant shall be deemed forfeited and will be reallocated to one or more Claimants, including Moher, in EEOC’s discretion.
Nonmonetary Relief
19. An "Offer Eligible Claimant" is a Claimant whom EEOC determines was not hired for the position at Pitt Ohio for which she applied, but who is qualified under the current hiring criteria for driver or dockworker positions supplied by Pitt Ohio, and remains interested in employment as a driver and/or dockworker with Pitt Ohio.
20. Pitt Ohio has provided EEOC the current hiring criteria for its driver and dockworker positions in its Ohio terminals, which are: Class A Linehaul Driver; Class A Local Driver; Class B Driver; Sprinter Driver; FT Dockworker; and PT Dockworker. Pitt Ohio will provide any updates or changes to these hiring criteria during the term of the Decree.
21. Based on information received in response to EEOC’s notice above and other available information, EEOC will determine which Claimants are Offer Eligible.
22. Within 60 days after the entry of this Decree, EEOC shall provide Pitt Ohio the name of each Offer Eligible Claimant who has expressed interest in employment with Pitt Ohio and whom it contends should receive "priority hiring consideration" as defined in paragraph 23, and at the same time it will provide Pitt Ohio the current qualifications information received from each such Offer Eligible Claimant.
23. As used herein, "priority hiring consideration" refers to Pitt Ohio's obligation to make employment offers for driver and dockworker positions to Offer Eligible Claimants who meet the hiring criteria in effect for such positions at the time the offer for such position would be made.
24. To the extent Pitt Ohio disagrees with those identified by EEOC to receive "priority hiring consideration," it will notify the EEOC within 10 days. Pitt Ohio and the EEOC agree to use their best efforts to resolve any dispute as to whether an Offer Eligible Claimant meets the then applicable hiring criteria. Unresolved disputes in this regard shall be resolved through the dispute resolution procedure in paragraph 44.
25. Absent disagreement or once any disagreement about whether an Offer Eligible Claimant should receive "priority hiring consideration" has been resolved, such Offer Eligible Claimant entitled to "priority hiring consideration" shall be placed on a "Job Offer List" according to her stated Ohio terminal preference for employment.
26. When a job vacancy for a driver or dockworker position becomes available at an Ohio terminal, Pitt Ohio will consult the Job Offer List for that terminal, invite as many Offer Eligible Claimants to interview as it deems appropriate and make offers of employment to Offer Eligible Claimants on the Job Offer List before considering the application of any other person.
27. Pitt Ohio may require each Offer Eligible Claimant to interview to verify her qualifications for a job vacancy for a driver or dockworker position. If with respect to a vacancy an Offer Eligible Claimant fails to respond by the close of the business day after receipt of a request for interview or to be available for an interview within two business days after responding to an interview request, such failure shall be deemed no response and Pitt Ohio shall have no further obligation to consider that Offer Eligible Claimant for a job vacancy, unless for the particular vacancy another Offer Eligible Claimant is hired, in which event the Offer Eligible Claimant who failed to respond or be available in accordance with this paragraph shall be entitled to an additional opportunity with respect to a vacancy before Pitt Ohio's obligation to consider her may be deemed extinguished.
28. An Offer Eligible Claimant will have three business days from receipt of an offer to accept the job offer. Offer Eligible Claimants who receive job offers, but decline them shall be removed from the Job Offer List and Pitt Ohio will have no further obligation to offer employment to them pursuant to the "priority hiring consideration" provisions of this Decree.
29. The "priority hiring consideration" provisions of this Decree shall not require Pitt Ohio to violate any applicable law, order, ordinance or regulation.
30. Pursuant to these "priority hiring consideration" provisions, Pitt Ohio shall extend at least 40 offers of employment, 26 for driver positions and 14 for dockworker positions. If at least 30 hires do not result from the initial offers, EEOC will provide Pitt Ohio the names of additional Offer Eligible Claimants and Pitt Ohio shall in good faith make additional offers until 30 hires are achieved or until the termination of this Decree, whichever is earlier.
31. Each Offer Eligible Claimant hired pursuant to the "priority hiring consideration" provisions will receive "rightful place instatement." "Rightful place instatement" shall mean that, when an Offer Eligible Claimant is hired into a driver or dockworker position, she shall be hired into the vacant position at the then existing hiring rate for the position with seniority rights and accompanying benefits, based on the position and her earlier date of application. Rightful place instatement shall not extend to bumping Pitt Ohio employees who occupy jobs, displacement of drivers from current route and shift assignments, or vacation preference rights.
32. Pitt Ohio will appoint from its human resources department an ombudsperson to resolve informally issues arising from or which result from women entering driver and/or dockworker positions pursuant to the terms of this Decree. To the extent necessary, Pitt Ohio will issue procedures for submission and handling of issues by the ombudsperson. The ombudsperson will not be the person in the human resources department responsible for responding to EEO charges or other EEO compliance.
33. In order to receive monetary relief pursuant to the terms of this Decree, each Payment Eligible Claimant and Offer Eligible Claimant must submit a claim, a Questionnaire, and execute a release in the form approved by the Court (Exhibit B), which must be sent as provided in the notice to Claimants after being approved by the Court.
Training
34. Within 30 days after the date of this Decree, Pitt Ohio shall provide a training proposal to EEOC for approval. The proposal shall include: format of the training; name(s) and qualifications of the instructor(s); content and topics to be covered; length of the program; and estimated training dates and locations. The training shall include at least the following topics: Title VII recordkeeping requirements (retention requirements, prohibition against destruction of records, etc.); hiring practices and procedures which comply with Title VII; the interview process and types of questions to be asked of applicants; and personnel policies and procedures which comply with Title VII.
35. Pitt Ohio shall conduct EEO training to be attended by its executives, managers, supervisors, human resources staff and recruiters from its corporate headquarters and Ohio terminals, and any other employees at corporate headquarters and the Ohio terminals coming in direct contact with prospective applicants or involved in the recruitment, selection and hiring process. This training shall be completed within 90 days of the date of this Decree.
36. Pitt Ohio shall train all newly-hired and newly-promoted management or supervisory staff, and other staff involved in the application and hiring process at its corporate headquarters or Ohio terminals on equal employment opportunity law, including the topics listed in paragraphs 34, within 90 days after their hire, promotion or transfer for the duration of this Agreement. To satisfy this requirement, Pitt Ohio may substitute viewing of a video presentation of the original training session, provided a qualified trainer attends to answer questions.
37. Pitt Ohio shall be responsible for the cost of training it conducts under this Agreement subject to other terms of this Agreement. All personnel to be trained shall attend the training sessions and Pitt Ohio shall retain the registry of attendance for the duration of this Agreement.
Management Accountability
38. In addition to the steps of training and appointment of an ombudsperson, identified elsewhere in this Decree, Pitt Ohio will help assure management and supervisory accountability in effecting the terms of this Decree in its Ohio facilities by:
39. Pitt Ohio will incorporate into the performance evaluations of its supervisors and managers an equal opportunity component.
Notice Posting
40. Within 14 days after the date of this Decree, Pitt Ohio shall post the Notice attached as Exhibit C at its Ohio terminals and corporate headquarters, and keep it upon those premises in places where bulletins and notices to employees and applicants for employment customarily are posted. Such Notice shall remain for the five-year duration of this Decree. If such Notice becomes defaced, marred or otherwise unreadable, Pitt Ohio will ensure that new readable copies are posted in the same manner as heretofore specified.
Reporting Requirements
41. The following is a summary of the interim reports required by this Agreement:
42. With the first reporting period starting on the first day of the month immediately after the date of this Decree, Pitt Ohio shall submit to the EEOC's Cleveland Field Office a written report for each preceding six-month period for three years and then for each preceding one-year period for the remaining term of the Agreement, regarding recruitment and hiring of women in driver and dockworker positions in Ohio, which shall include:
43. On the same reporting basis as paragraph 42, Pitt Ohio shall provide copies or documentation of any employment offers made to Offer Eligible Claimants pursuant to the "priority hiring consideration" provisions of this Decree and shall provide the following information: date of offer; position offered, full or part-time status of the position offered; hiring wage rate; geographic location of position; whether the offer was accepted or rejected by the Offer Eligible Claimant; and the reason for rejection, if known.
Dispute Resolution
44. In the event a party to this Decree believes another party has failed to comply with any provision of it, the complaining party shall notify the other party or parties in writing of the specific provision or provisions with which compliance allegedly has not occurred and the facts forming the basis of the alleged non-compliance. Upon receipt of such notice, the alleged non-complying part shall have 30 days to remedy the alleged non-compliance or satisfy the complaining party that the alleged non-complying party has complied. If the alleged non-complying party has not remedied the alleged non-compliance or satisfied the complaining party that it has complied within 30 days, the complaining party may submit the matter to Niki Schwartz for disposition according to procedures he shall determine. Pitt Ohio shall pay the costs of Mediator Niki Schwartz for any such procedures where it is the alleged non-complying party, unless he shall determine to the contrary for reasons he must specify. The foregoing is subject to the proviso that EEOC may proceed directly to court in situations where it believes the delay attendant to the notice and referral to Niki Schwartz may cause harm to EEOC's or Claimant interests.
Miscellaneous Provisions
45. Each party to this Decree shall bear its own expenses, costs and attorneys' fees, subject to the terms of this Decree.
46. The terms of this Decree are and shall be binding upon Pitt Ohio, its officers, agents, employees and all others in active concert with them. Pitt Ohio will provide prior written notice to any potential purchaser of its business, or of some or all of its assets, and to any potential successor of this action, EEOC's complaint and this Decree. This paragraph shall not be construed as placing any limit on remedies available to the Court in the event any individual is found in contempt for a violation of this Decree.
47. This Decree shall be filed in the United States District Court for the Northern District of Ohio and shall continue in effect for five years. During this time, this Court shall retain jurisdiction over this matter and the parties for purposes of enforcing compliance with the Decree, including issuing such orders as may be required to effectuate its purposes.
48. EEOC may review Pitt Ohio's compliance with this Decree at reasonable times and upon reasonable notice through inspection of Pitt Ohio's Ohio terminals and/or headquarters, and by reviewing or copying documents or electronic information, and/or by interviewing witnesses.
49. Pitt-Ohio will cooperate with EEOC to facilitate notice to the Claimants after preliminary approval of the Consent Decree and in preparation for a Fairness Hearing, and any other procedures necessary to obtain final approval and entry of the Consent Decree.
Dated: ___, 2008 ______________________________________
United States District Judge