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Equal Employment Opportunity Commission v. Allsup's Convenience Stores, Inc.

United States District Court, D. New Mexico

September 25, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
ALLSUP'S CONVENIENCE STORES, INC., Defendant.

          Loretta Medina Supervisory Trial Attorney.

          Gina Carrillo Trial Attorney.

          Lauren Jaeckel Trial Attorney.

          Attorneys for Plaintiff EEOC Michael Fox Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

          CONSENT DECREE

         I. RECITALS

         1.This 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.

         2. The Parties to this Decree are the EEOC and Allsup's.

         3. The 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.

         4. As to the issues resolved, this Decree is final and binding upon the Parties and their successors and assigns.

         5. For the purpose of amicably resolving disputed claims, the Parties jointly request this Court to adjudge as follows:

         IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:

         II. JURISDICTION

         6. 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.

         III. TERM AND SCOPE

         7. Term.

         The duration of this Decree shall be three (3) years from the date of signing by the Court.

         8. Scope.

         The 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.

         9. This 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.

         IV. ISSUES RESOLVED

         10. 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 Aggrieved Individual.

         11. 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.

         12. 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 Decree.

         V. MONETARY RELIEF

         13. Judgment.

         Judgment is hereby entered in favor of the Commission and against Defendant in the amount of nine hundred fifty thousand dollars ($950, 000.00).

         14. Settlement Amount.

         In 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.

         15. Final Distribution List.

         Prior 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 Medina's distribution.

         16. Final Distribution of Settlement Amount.

         Within 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).

         17. Administrative Costs.

         Defendant 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.

         18. Tax Forms.

         Defendant 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.

         19. 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 issued.

         20. Impermissible Conditions.

         Defendant 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.

         VI. OTHER INDIVIDUAL RELIEF

         21. 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 lawsuit.

         22. 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 Paragraph 16.

         23. 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.

         24. 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.

         VII. EQUITABLE RELIEF

         A. ...


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