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Monday, July 28, 2014

Court Recommends Supervalu/Jewel-Osco Be Held in Contempt for Violations of EEOC Consent Decree in Disability Case

as posted...

U.S. Equal Employment Opportunity Commission


Court Recommends Supervalu/Jewel-Osco Be Held in Contempt for Violations of EEOC Consent Decree in Disability Case

Federal Agency Obtains Relief for Three Jewel Employees Denied Accommodation, Court Calls for Extension of Decree and Appointment of Special Master
CHICAGO - Federal Magistrate Judge Michael Mason has entered a Report and Recom­mend­ation, in the form of a court order, recommending that the District Court in Chicago find Supervalu / Jewel-Osco in contempt of court and sanction it for multiple violations of the consent decree previ­ously entered by District Judge Ronald A. Guzman to resolve the EEOC's Americans with Disabilities Act (ADA) lawsuit against the supermarket giant.
After a three-day hearing in March and April 2014 and briefing by the parties, the court found on July 15 that "the evidence is overwhelming that the company did not do what it was supposed to do under the Decree." The court opined that Jewel-Osco was in contempt of court when it violated the pro­vision of the consent decree enjoining the company from discriminating "on the basis of disability by not providing reasonable accommodation to persons desiring to return to work from a disability leave." The EEOC contended that two employees who were fired and one who was forced to resign while on unpaid leave could easily have been returned to work at Jewel-Osco with simple minimal-cost accommodations.
In his order, Magistrate Judge Mason was sharply critical of Jewel-Osco's position before the court. "Jewel also argues," he wrote in his decision, "that, during the hearing the 'EEOC failed to present evidence that any of the claimants was able to return to work with or without a reasonable accommodation.' This and other assertions leave the Court wondering whether Jewel may have attended a different hearing than the one this Court presided over."  In assessing the relief to be compelled from Jewel-Osco, Mason went on to say that the court had determined "that clear and convincing evidence shows that the company violated" the consent decree, and that "based on the evidence adduced at the hearing and the attitude such evidence reflects on the part of the company, the Court finds that a coercive sanction is also appropriate."
  "Consent decrees have teeth," said Regional Attorney John Hendrickson of the EEOC's Chicago District Office.  "Courts do not look kindly upon open and notorious violations of the consent decrees they enter-nor, as this decision shows, upon employers who attempt to mischarac­terize the evidence which the court itself has seen introduced. Jewel-Osco ought to have known better on both counts, and we must hope that Magistrate Judge Mason's findings will sound an alarm with respect to the company's compliance with the federal employment discrimination laws, including the ADA."
As a sanction for contempt, the Magistrate Judge Mason recommended that Jewel-Osco pay a total of $82,000 in back pay to three former employees who were denied accommodation. In addition, the magistrate judge recommended that the court extend the consent decree by one year and order that a special master, paid by the company, review the decisions made by the company and its medical accommodations team to ensure compliance with the consent decree. He also found that the EEOC should be reimbursed for its reasonable fees and costs incurred in bringing the contempt motion.
The court found that "regardless of how the company's rigorous process was supposed to work - there was little or no effort to come up with any sort of modification or accommodation that would allow the employee to return to work." The court found that, though the company's training materials indicated that the company would look for available jobs in other stores as a reasonable accommoda­tion, neither the medical accommodations team nor anyone else at Jewel-Osco made any such search. The court also noted that company did not consider assistive devices and the "witnesses who testified for the company were very dismissive of the notion of allowing any assistive devices to be brought into the store."
Jewel-Osco has been under the terms of a three-year consent decree, approved and entered by Judge Guzman on Jan. 14, 2011. That decree resolved the EEOC's lawsuit in U.S. District Court for the Northern District of Illinois (EEOC v. Supervalu, 09-cv-5637).  The lawsuit, which was originally filed Sept. 4, 2009, alleged that Jewel-Osco had violated the ADA by failing to accommodate emp­loyees who wanted to return to work from disability leave. Under the terms of the decree, in addition to reforming its ADA policies and practice, Jewel-Osco had to pay $3.2 million to former employees.
EEOC Supervisory Trial Attorney Gregory Gochanour said, "Companies should take note that we expect them to take our consent decrees seriously. They are not merely guidance, they are court orders, and the EEOC will not stand by if companies ignore the injunctions they agreed to in order to remedy and prevent discrimination."
EEOC Trial Attorney Richard Mrizek added, "It is unfortunate that Jewel-Osco chose to spend so much in attorneys' fees and costs -- and company time and attention -- to fight the EEOC rather than focus its resources on complying with the decree.  Magistrate Judge Mason's decision make plain that it was all a waste of the company's assets and stature.  Not a happy chapter for Jewel-Osco in this community."
The EEOC was represented at the contempt hearing by Chicago Trial Attorneys Richard Mrizek, Deborah Hamilton, and Ethan Cohen. The EEOC Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.
 The EEOC enforces federal laws prohibiting employment discrimination. Further information about the agency is available on its web site at www.eeoc.gov.

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