United States District Court, D. New Mexico
Loretta Medina Supervisory Trial Attorney.
Carrillo Trial Attorney.
Jaeckel Trial Attorney.
Attorneys for Plaintiff EEOC Michael Fox Ogletree, Deakins,
Nash, Smoak & Stewart, P.C.
matter was instituted by Plaintiff Equal Employment
Opportunity Commission ("Commission, "
"Plaintiff, " or the "EEOC"), an agency
of the United States government, alleging that Defendant
Allsup's Convenience Stores, Inc.
("Allsup's" or "Defendant") violated
Title I of the Americans with Disabilities Act of 1990
("ADA") and Title VII of the Civil Rights Act of
1964 ("Title VII"), as amended by the Pregnancy
Discrimination Act of 1978 ("PDA"), by
discriminating against Yolanda Chavez, Joy Pointer, and
similarly aggrieved women ("Aggrieved Individuals")
because of their disabilities and/or because of sex or
pregnancy. The alleged unlawful employment practices include
discriminatory discharge of pregnant women from their
employment because of pregnancy, a disability, or because of
the need for accommodation; failure to accommodate under the
ADA; and discrimination in the terms, conditions, and
privileges of the women's employment.
Parties to this Decree are the EEOC and Allsup's.
Parties, desiring to settle this action by an appropriate
Consent Decree ("Decree") agree to the jurisdiction
of this Court over the Parties and the subject matter of this
action. The Parties also agree to the power of this Court to
enter a Consent Decree enforceable against Defendant.
to the issues resolved, this Decree is final and binding upon
the Parties and their successors and assigns.
the purpose of amicably resolving disputed claims, the
Parties jointly request this Court to adjudge as follows:
IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
The Parties stipulate to the jurisdiction of the Court over
the Parties and subject matter of this action and have waived
the entry of findings of fact and conclusions of law.
TERM AND SCOPE
duration of this Decree shall be three (3) years from the
date of signing by the Court.
terms of this Decree shall apply to all Allsup's business
operations in New Mexico and Texas, including the 317
Allsup's convenience stores now operating in New Mexico
and Texas and any Allsup's convenience stores that open
in New Mexico or Texas during the duration of this Decree.
case and the Decree are limited to claims of pregnancy
discrimination and disability discrimination related to
pregnancy. Any injunctive relief granted herein shall be for
the duration of the Decree.
This Decree resolves the claims alleged in the
above-captioned lawsuit, and constitutes a complete
resolution of all of the EEOC's claims of unlawful
employment practices under the ADA, Title VII, and the PDA
arising from Charge of Discrimination Numbers 543-2014-00094C
and 543-2012-01343C, filed respectively by Yolanda Chavez and
Joy Pointer (collectively, the "Charging Parties"),
and Charge 39B-2015-02175 filed by Isabel Medina, an
This Decree is not an admission by Defendant of any violation
of Title VII, the Pregnancy Discrimination Act or the
Americans with Disabilities Act, and Defendant denies the
allegations made by the EEOC and maintains that it did not
engage in any unlawful actions based on pregnancy or
disability or any other protected category.
Defendant and its officers, agents, employees, successors,
and all other persons in active concert or participation with
any of them will not interfere with the relief herein
ordered, but shall cooperate in the implementation of this
is hereby entered in favor of the Commission and against
Defendant in the amount of nine hundred fifty thousand
dollars ($950, 000.00).
accordance with this Decree, Defendant shall pay a total of
nine hundred fifty thousand dollars ($950, 000.00) ("the
settlement amount") to resolve the EEOC's claims for
back pay, compensatory, and punitive damages, on behalf of
the Charging Parties and the Aggrieved Individuals who are
entitled to relief pursuant to this Decree, in amounts to be
determined by the EEOC.
Final Distribution List.
to the EEOC providing notice to the Charging Parties and
Aggrieved Individuals, the EEOC will provide Defendant, via
e-mail, a proposed Final Distribution List in the form of an
Excel spreadsheet containing the following information for
each Charging Party and Aggrieved Individual: (1) name, (2)
social security number or tax identification number, (3)
mailing address, (4) total claim share amount, (5) claim
share amount allocated for back pay, and (6) claim share
amount allocated for compensatory damages. Within ten (10)
business days of receipt of a proposed Final Distribution
List, Defendant may provide input regarding its view
regarding the amount allocated to any individual. EEOC
retains the final discretion to determine the amount awarded
to each Charging Party and Aggrieved Individual. EEOC will
provide a Final Distribution List to Allsup's within (10)
business days of receipt of Defendant's input, if any. In
EEOC's Final Distribution List, Attorneys' Fees of
$22, 500.00 and New Mexico Gross Receipts Tax in the amount
of $1, 870.31 shall be designated for payment to Isabel
Medina and her attorney, Merit Bennett as part of Isabel
Final Distribution of Settlement Amount.
fifteen (15) business days after receiving the EEOC's
Final Distribution List and completed Form W-4s and W-9s for
Charging Parties and Aggrieved Individuals, Defendant will
send payments in the amounts specified to each Charging Party
and Aggrieved Individual to the mailing addresses listed in
the EEOC's Final Distribution List. If there is any delay
in receipt of an applicable Form W-4 or Form W-9 for a
Charging Party or Aggrieved Individual, then Defendant will
send payment within fifteen (15) business days after receipt
of the applicable form(s).
shall pay all administrative costs for the process of
distributing the settlement amount under this Decree,
including, but not limited to: postage, supplies, clerical
services, accounting services, and tax return preparation
incurred by Defendant in performing its duties under this
Decree. Defendant shall not be responsible for any costs
except as required by Paragraphs 16-18 of this Decree.
will prepare and distribute tax reporting forms to each
Charging Party and Aggrieved Individual who receives payment
under this Decree in accordance with the Final Distribution
List. Back pay allocations will be reported on IRS Form W2.
All other payments will be reported on IRS Form 1099.
Defendant is responsible for withholding payroll taxes on the
back pay amounts, paying withheld funds to the IRS, and
paying the employer's share of payroll taxes. Aggrieved
Individuals will be responsible for providing all W4, W9 or
other tax forms required for the reporting of these payments.
Copies of Checks to EEOC. Within
ten (10) business days after payments are mailed to payees,
Defendant shall submit to the EEOC a copy of the checks
will not condition the receipt of individual relief upon any
Charging Party's or any Aggrieved Individual's
agreement to: (a) maintain as confidential the terms of this
Decree or the facts of the case, (b) waive her statutory
right to file a charge with any federal or state
anti-discrimination agency, or (c) promise not to reapply for
a position at any Allsup's facility.
OTHER INDIVIDUAL RELIEF
Within twenty (20) business days after entry of this Decree,
Defendant will remove from the personnel files of the
Charging Parties and the Aggrieved Individuals any documents
that contain: (a) a reference to the allegations of
discrimination filed against Defendant forming the basis of
this action; (b) a reference to the Charging Party's or
Aggrieved Individual's participation in this action; and
(c) a document that refers, makes reference to, or relates to
any performance deficiencies of the Charging Party or
Aggrieved Individual arising from the claims of disability
and/or sex or pregnancy discrimination alleged in this
Defendant will provide a positive letter of reference in the
form attached as Attachment A for each Charging Party or
Aggrieved Individual listed on Attachment B. Former employees
McKenzie and Davis may receive letters of reference that
contain solely the information on their employment that
Allsup's policy on references allows. The letters of
reference shall accompany the payment distribution made to
each Charging Party or Aggrieved Individual pursuant to
Within twenty (20) business days after entry of this Decree,
EEOC will provide Defendant with a list of any Charging Party
or Aggrieved Individual listed on Exhibit B who wishes to be
re-employed by Allsup's.
Within twenty (20) business days of receipt of the EEOC's
Re-Employment List indicating individuals who desire
re-employment at Allsup's, Defendant shall offer each
Charging Party and Aggrieved Individual on the EEOC's
Re-Employment List a position as either a Store Clerk,
Assistant Manager, or Store Manager according to the last
position held by the Charging Party or Aggrieved Individual.
Each individual seeking re-employment must meet the
applicable requirements for any position with or without
reasonable accommodation. Defendant shall cooperate with each
individual requesting re-employment to assure that they are
offered employment in an available position in a Store or
Area that is conveniently located.