UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

15 3: 27 f \r.. :'.' ,T~.:1-'

FJ~1 I j

EQUAL EMPLOYMENT OPPORTUNITY)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

A & R Truss Company

)

)

)

)

Defendants.

)

---------------------------)

CASE NO 1 : 0 5 CV 054 7
HON
Richard Alan Enslen
u.s. District Judge
COMPLAINT AND JURY TRIAL DEMAND

NATURE OF THE ACTION

This is an action brought under Title VII of the Civil Rights Act of 1964 to correct

unlawful employment practices and to provide appropriate relief to Theodore Kilgore

("Kilgore") who was adversely affected by such practices. The Equal Employment

Opportunity Commission ("Commission") alleges that A & R Truss Company ("Defendant")

discriminated against Kilgore by subjecting him to a hostile work environment based on his

race, African American.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,

1343, and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and

(3) and 707(e) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-

5(f)(1) and (3) and 42 U.S.C. 2000e-6(e) ("Title VII"), and Section 102 of the Civil Rights Act

of 1991,42 U.S.C. § 1981 a.

2. The employment practices alleged to be unlawful were and are now being

committed within the jurisdiction of the United States District Court for the Western District

of Michigan, Southern Division.

3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"),

is the agency of the United States of America charged with the administration, interpretation,

and enforcement of Title VII, and is expressly authorized to bring this action by Section

706(f)(1) and (3) of Title VII, 42 U.S.C. §§ 2000e-5(f)(1) and (3).

4. At all relevanttimes, Defendant, A & R Truss Company, has continuously been

an employer doing business in the State of Michigan and the City of New Buffalo and has

continuously had at least 15 employees each.

5. At all relevanttimes, Defendants have continuously been an employer engaged

in an industry affecting commerce within the meaning of Sections 701 (b), (g), and (h) of Title

VII, 42 U.S.C. §§ 2000e(b), (g), and (h).

STATEMENT OF CLAIMS

6.

More than thirty days prior to the institution of this lawsuit, Theodore Kilgore

filed a charge with the Commission alleging violations of Title VII by Defendant. All

conditions precedent to the institution of this lawsuit have been fulfilled.

7. Since at least July, 2004, Defendant has engaged in unlawful employment

practices at its New Buffalo, Michigan facility, in violation of Section 703(a), 42 U.S.C. §

2000e-2(a). Defendant's unlawful employment practices included repeatedly subjecting

Kilgore to racially offensive epithets.

8. Kilgore complained about the racially offensive conduct. Defendant responded

to Kilgore's complaints with threats and intimidation.

9. The effect of the conduct complained of in paragraphs 7 and 8 above has been

to deprive Kilgore of equal employment opportunities and otherwise adversely affect his

status as an employee because of his race.

10. The unlawful employment practices complained of in paragraphs 7 and 8 above were and are intentional.
11. As the result of the unlawful employment practices, Kilgore has suffered emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life.
12. The unlawful employment practices complained of in paragraphs 7 and 8 above were and are done with malice orwith reckless indifference to the federally protected rights of Kilgore.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in race harassment and any other employment practice which discriminates on the basis of race. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for persons of all races, and which eradicate the effects of its past and present unlawful employment practices. C. ORDER Defendant Employer to provide training on Title VII of the Civil Rights Act of 1964, as amended, and its prohibitions against racial harassment of its employees. D. Order Defendant Employer to make whole Kilgore by providing compensation for past non-pecuniary losses resulting from the unlawful practices complained of in paragraphs 7 and 8 above in amounts to be proven at trial. E. Order Defendant Employer to pay Kilgore punitive damages for its malicious or reckless conduct described in paragraphs 7 and 8 above, in amounts to be proven at trial. F. ORDER Defendant Employer to pay nominal damages.

G. Grant such further relief as the Court deems necessary and proper in the

public interest, including the institution of a race discrimination and harassment policy and

complaint procedure, and mandatory race discrimination training for all Defendant's

management employees.

I.

Award the Commission its costs of this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by its complaint.

Respectfully submitted,

ERIC S. DREIBAND General Counsel

DATED: August 4, 2005

JAMES L. LEE Deputy General Counsel
ADE~PP~~833)
Regional Attorney

ROBERT K. DAWKINS (P38289) Supervisory Trial Attorney

OMAR WEAVER (P58861) Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

DETROIT DISTRICT OFFICE Patrick V. McNamara Building 477 Michigan Avenue, Room 865 Detroit, Michigan 48226 Telephone: (313)226-3407

 
 Case 1:05-cv-00547-JGS Document 24-1 Filed 03/02/2006 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

OS FEB 27 PH 3: 07

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.

Civil Action No. 1 :05CV547 Hon. Joseph Scoville

A & R TRUSS COMPANY,

Defendant.

ADELE RAPPORT (P44833) ROBERT K. DAWKINS (P38289) OMAR WEAVER (P58861) Attorneys for Plaintiff Equal Employment Opportunity Commission Patrick V. McNamara Building 477 Michigan Avenue, Room 865 Detroit, Michigan 48226 (313) 226-5673
CHARLES S. MISHKIND (P32346) BRUCE D. OLSON (P44573) Attorneys for Defendant Miller Canfield Paddock and Stone, P.L.C. 99 Monroe Avenue, N.W., Suite 1200 Grand Rapids, MI 49503 (616) 776-6307

CONSENT DECREE

This matter is before the Court for entry of this judgment by consent of the parties in

order to effectuate a compromise and settlement of all claims. After careful review and

consideration, the Court believes that entry of this judgment is in the interest ofjustice.

1.

Plaintiff the United States Equal Employment Opportunity Commission ("the EEOC"),

commenced the above entitled action on August 15, 2005, in the United States District

Case 1:05-cv-00547-JGS Document 24-1 Filed 03/02/2006 Page 2 of 7
Court for the Western District of Michigan, Southern Division, alleging that the Defendant A & R Truss Company ("A & R Truss"), engaged in unlawful employment practices or otherwise ratified such practices which violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. The EEOC alleged in its Complaint that A & R Truss discriminated against Theodore Kilgore by subjecting him to a hostile work environment because of his race, African American. 2. Defendant A & R Truss denies all allegations pertaining to unlawful employment practices alleged in the EEOC's Complaint. 3. As a result of settlement discussions, the EEOC and A & R Truss have resolved their differences and have agreed that this action should be settled by entry of this Consent Decree. This Decree is contingent upon Mr. Kilgore signing an appropriate Settlement Agreement and Release of all claims. It is the intent of the parties that this Consent Decree be a final and binding settlement in full disposition of any and all claims alleged against A & R Truss or which might have been alleged against A & R Truss in the Complaint filed on behalf of Charging Party Theodore Kilgore.
STIPULATED FACTS 4. The Parties stipulate and agree that the EEOC is the agency of the United States
government authorized to investigate allegations of unlawful employment discrimination, to bring civil actions to prohibit unlawful employment practices and to seek relief for individuals affected by the practices complained of in this lawsuit. 5. A & R Truss is an employer engaged in an industry affecting commerce within the meaning of Section 701 (g) and (h) of Title VII of the Civil Rights Act of 1964, as
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Case 1:05-cv-00547-JGS Document 24-1 Filed 03/02/2006 Page 3 of 7
amended, 42 U.S.C. 2000e(g). A & R Truss had at least fifteen (15) employees for twenty (20) or more calendar weeks during the relevant time period. 6. Pursuant to Title VII, the Parties acknowledge the jurisdiction of the United States District Court for the Western District of Michigan (Southern Division) over the subject matter and the Parties to this case for the purpose of enforcing the provisions of this Decree if such enforcement becomes necessary. 7. Venue is appropriate in the Western District of Michigan (Southern Division). For purposes of this Decree and proceedings related to this Decree only, A & R Truss agrees that all statutory conditions precedent to the institution of this lawsuit have been fulfilled.
NON-ADMISSION 8. This Decree, being entered with the consent of the EEOC and A & R Truss, shall not
constitute an adjudication or finding on the merits of the case and shall not be construed as an admission by A & R Truss of any violation of Title VII or any other law, rule, or regulation dealing with or in connection with the subject of equal employment opportunity and fair employment practice laws.
MONETARY RELIEF 9. A & R Truss agrees to pay monetary relief for Theodore Kilgore in the amount of
$25,000.00. This amount represents payment of $25,000.00 in alleged non-pecuniary compensatory damages. A & R Truss shall issue a 1099 form for the amount in the ordinary course of business. The funds are to be paid in lump sums directly to Kilgore via certified mail at the following addresses: 1409 State Street, LaPorte, Indiana 46350. Defendant is to pay the funds to Kilgore within fourteen (14) days after execution of the Release by Mr. Kilgore and the entry of this Decree and Stipulation of Dismissal
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by the Court, whichever occurs later. A copy of the check shall be sent to Adele Rapport, Regional Attorney, EEOC, 477 Michigan Avenue, Room 865, Detroit, Michigan 48226, within fifteen days of issuance of the checks.
NON-MONETARY RELIEF 10. A & R Truss agrees to develop a policy which complies with the anti-harassment
provisions of Title VII of the Civil Rights Act of 1964, as amended. The policy shall contain a procedure for reporting instances of harassment and shall clearly identify who can receive complaints about harassment. In addition, at a minimum, the policy shall contain the following elements: 1) a clear explanation of prohibited conduct; 2) assurance that employees who complain will be protected from retaliation; 3) a process that provides multiple avenues for making complaints; 4) assurance of confidentiality to the extent possible; 5) the requirement of a prompt, thorough and impartial investigation; and 7) assurance that immediate and appropriate corrective action will be taken when A & R Truss determines that harassment has occurred. This policy shall be developed no later than sixty (60) days after the signing of this Decree. A draft policy shall be sent to Adele Rapport, Regional Attorney, at the previously provided address, for the Commission's approval no more than sixty (60) days after the signing of this Decree.
NON-DISCRIMINATION 11. A & R Truss and its management shall comply with the provisions of Title VII covering
racial harassment in the workplace and with regard to its prohibitions against retaliation for engaging in protected activity.
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DISPUTE RESOLUTION AND COMPLIANCE 12. The Parties agree that the United States District Court for the Western District of
Michigan, Southern Division, will have all available equitable powers, including injunctive relief, to enforce the provisions of this Decree. The parties agree to the jurisdiction of the U.S. District Court for the Western District of Michigan for the purpose of reviewing compliance with this Decree. The Parties shall engage in a good faith effort to resolve any dispute as to compliance prior to seeking review by the Court and shall be required to give written notice to each other twenty (20) days before moving for such review.
POSTING OF NOTICE 13. A & R Truss agrees to post a mutually agreeable Notification, attached as Attachment A,
in a conspicuous place which sets forth an employee's rights regarding the federal antidiscrimination laws. This Notice shall be posted for one year from the entry of this Decree by the Court. Should any posted copies of the Notice become defaced, marred or otherwise made unreadable, A & R Truss agrees to post a readable copy of this Notice in the same manner heretofore specified as soon as practical thereafter.
ALLOCATION OF COST 14. The Parties agree to pay their respective costs and attorneys fees associated with the
investigation, institution and pursuit of this matter including the drafting and enforcement of this Agreement.
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Case 1:05-cv-00547-JGS Document 24-1 Filed 03/02/2006 Page 6 of 7
SEVERABILITY CLAUSE 15. If any provision of this Decree is found to be unenforceable by a Court, only the specific
provision in question shall be affected and the other enforceable provisions shall remain in full force.
TRAINING 16. A & R Truss agrees to provide training to its current managers, and any new managers
hired during the effective dates of this Decree, on Title VII of the Civil Rights Act of 1964, as amended and its prohibitions against harassment based on race and other protected status. The training shall include a discussion of what behavior constitutes racial harassment and what should be done when an individual believes that he/she has been subjected to harassment. The training shall also include a discussion of the new anti-harassment policy. An attendance list of each individual who completed the training shall be sent to Omar Weaver, Trial Attorney, at the previously provided address, within fifteen (14) days of the completion of the training. All such training sessions must take place within one (1) year of the signing of this Decree. In addition, consistent with its policy, A & R Truss shall provide new employees with its employee handbook which contains its anti-harassment policy within ten (10) days of his/her first day of work.
ENTIRE AGREEMENT 17. This Decree constitutes the entire agreement and commitments of the Parties. Any
modifications to the Consent Agreement must be mutually agreed upon in writing and signed by the Parties hereto.
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Case 1:05-cv-00547-JGS Document 24-1 Filed 03/02/2006 Page 7 of 7
DURATION 18. This Decree shall remain in effect for one year from its entry with the Court and shall end
of its own accord.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS

ADELE RAPPORT (P44833) Associate Regional Attorney

ROBERT DAWKINS (P38289) Supervisory Trial Attorney

OMAR WEAVER (P58861) Trial Attorney

DETROIT FIELD OFFICE
Patrick V. McNamara Federal Building 477 Michigan Avenue, Room 865 Detroit, MI 48226

J; Dated:

~
r

'1./06

A & R TRUSS CORPORATION
BY: MILLER CANFIELD, PADDOCK & STONE P.L.C.
~ck-!f~
CHARLES S. MISHKIND (P32346) BRUCE D. OLSON (P44573) Attorneys for Defendant Miller Canfield Paddock and Stone, P.L.C. 99 Monroe Avenue, N.W., Suite 1200 Grand Rapids, MI 49503
Dated:L~

IT IS SO ORDERED:
March 2, 2006 Date

/s/ Joseph G. Scoville
Hon. Joseph Scoville United States Magistrate Judge

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CLOSED, CONSENTMAG
United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:05-cv-00547-JGS

Equal Employment Opportunity Commission v. A & R Truss Company Assigned to: Magistrate Judge Joseph G. Scoville Cause: 28:451 Employment Discrimination

Date Filed: 08/15/2005 Date Terminated: 03/02/2006 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

plaintiff
Equal Employment Opportunity Commission

represented by Adele Rapport U.S. Equal Employment Opportunity Commission (MI) 865 Patrick V. McNamara Bldg. 477 Michigan Ave. Detroit, MI 48226 (313) 226-6701 Email: adele.rapport@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Weaver U.S. Equal Employment Opportunity Commission (MI) 865 Patrick V. McNamara Bldg. 477 Michigan Ave. Detroit, MI 48226 (313) 226-3407 Email: omar.weaver@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. defendant A & R Truss Company

represented by Charles S. Mishkind Miller Canfield Paddock & Stone PLC (Grand Rapids) 1200 Campau Sq. Plz. 99 Monroe Ave., NW Grand Rapids, MI 49503 (616) 454-8656 Email: mishkind@millercanfield.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Date Filed 08/15/2005
08/15/2005 09/13/2005 09/13/2005 09/13/2005 09/13/2005
09/15/2005 09/15/2005
09/15/2005 09/28/2005 09/28/2005 09/28/2005
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Richard P. Smith Blake Kirchner Symonds MacFarlane Larson & Smith PC 1432 Buhl Bldg. 535 Griswold St. Detroit, MI 48226 (313) 961-7321 Email: rps@blakekirchner.com TERMINATED: 09/29/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

#

Docket Text

1 COMPLAINT and Jury Trial Demand against A & R Truss Company filed by Equal Employment Opportunity Commission (Attachments: # 1 Civil Cover Sheet) (acr, ) (Entered: 08/18/2005)
SUMMONS ISSUED as to A & R Truss Company (acr, ) (Entered: 08/18/2005)
2 ANSWER to complaint by A & R Truss Company (bd, ) (Entered: 09/14/2005)
3 AFFIRMATIVE DEFENSES by defendant A & R Truss Company re 2 (bd, ) (Entered: 09/14/2005)
4 DEMAND for TRIAL BY JURY by defendant A & R Truss Company (bd, ) (Entered: 09/14/2005)
5 PROOF OF SERVICE by defendant A & R Truss Company re 2, 3, 4 and for Initial Interrogatories to Plaintiff, Notice to Produce Documents to Plaintiff, Notice of Taking Deposition of Theodore Kilgore via first-class mail on 9/12/05 (bd, ) (Entered: 09/14/2005)
6 CLERK'S LETTER to attorney Richard P. Smith regarding e-filing requirement and paper filing 2, 3, 4, 5 (bd, ) (Entered: 09/15/2005)
7 ORDER setting Rule 16 scheduling conference for 10/5/2005 at 10:00 AM before Magistrate Judge Ellen S. Carmody; status report due by 9/30/2005 ; signed by Senior Judge Richard Alan Enslen (Senior Judge Richard Alan Enslen, sas) (Entered: 09/15/2005)
Copy of Order Setting Rule 16 Scheduling Conference 7 sent via U.S. Mail to Richard P.Smith (bd, ) (Entered: 09/15/2005)
8 STIPULATION Joint Stipulation Regarding Substitution Of Counsel by defendant A & R Truss Company (Mishkind, Charles) (Entered: 09/28/2005)
9 ATTORNEY APPEARANCE of Charles S. Mishkind on behalf of defendant A & R Truss Company (Mishkind, Charles) (Entered: 09/28/2005)
10 PROOF OF SERVICE by defendant A & R Truss Company (Mishkind, Charles) (Entered: 09/28/2005)

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09/29/2005 09/29/2005 09/29/2005 09/30/2005 10/04/2005
10/19/2005 10/20/2005 10/24/2005 10/25/2005 10/26/2005
11/08/2005 11/08/2005 11/15/2005

11 ORDER granting STIPULATION 8 Regarding Substitution Of Counsel for Defendant A & R Truss Company; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh) (Entered: 09/29/2005)
Copy of Order on Stipulation 11 sent via U.S. Mail to Richard P. Smith (bd, ) (Entered: 09/29/2005)
12 ADMINISTRATIVE ORDER No. 05-116 that this case is reassigned to Chief Judge Robert Holmes Bell for all further proceedings; Senior Judge Richard Alan Enslen to be assigned another case pursuant to approved procedure ; signed by Chief Judge Robert Holmes Bell (acr, ) (Entered: 09/30/2005)
13 NOTICE rescheduling hearing that was previously set for 10/5/05: Rule 16 scheduling conference is set for 10/19/2005 at 11:00 AM at 699 Federal Building, Grand Rapids, MI before Magistrate Judge Joseph G. Scoville; (Chief Judge Robert Holmes Bell, sdb) (Entered: 09/30/2005)
14 NOTICE rescheduling hearing that was previously set for 10/19/05; Rule 16 scheduling conference is rescheduled for 10/25/2005 at 2:00 p.m. before Magistrate Judge Joseph G. Scoville by telephone; plf's counsel shall initiate the conference call; (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 10/04/2005)
15 ATTORNEY APPEARANCE of Omar Weaver on behalf of plaintiff Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 10/19/2005)
16 JOINT STATUS REPORT submitted for filing by defendant A & R Truss Company Joint Rule 16 Status Report (Mishkind, Charles) (Entered: 10/20/2005)
17 NOTICE: The telephone Rule 16 scheduling conference set for 10/25/2005 at 2:00 PM is now before Chief Judge Robert Holmes Bell; (Chief Judge Robert Holmes Bell, sdb) (Entered: 10/24/2005)
18 MINUTES of Rule 16 scheduling conference by telephone held before Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, sdb) (Entered: 10/25/2005)
19 CASE MANAGEMENT ORDER: jury trial set for 11/27/2006 at 9:00 AM at 699 Federal Building, Grand Rapids, MI before Magistrate Judge Joseph G. Scoville; final pretrial conference set for 11/9/2006 at 10:00 AM at 699 Federal Building, Grand Rapids, MI before Magistrate Judge Joseph G. Scoville; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, ymc) (Entered: 10/26/2005)
20 NOTICE Consent, and Order Of Reference - Exercise Of Jurisdiction By A United States Magistrate Judge by defendant A & R Truss Company (Mishkind, Charles) (Entered: 11/08/2005)
PROPOSED STIPULATION and ORDER re 20 (taken from document 20) by plaintiff Equal Employment Opportunity Commission, defendant A & R Truss Company (gjf, ) (Entered: 11/08/2005)
21 AMENDED ANSWER to complaint 2 And Notice Of Additional Defenses filed by defendant A & R Truss Company (Mishkind, Charles) (Entered: 11/15/2005)

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11/15/2005 12/07/2005 03/02/2006 03/02/2006

22 CERTIFICATE OF SERVICE by defendant A & R Truss Company (Mishkind, Charles) (Entered: 11/15/2005)
23 CONSENT of all parties to jurisdiction by US Magistrate Judge; case reassigned to Magistrate Judge Joseph G. Scoville ; signed by Chief Judge Robert Holmes Bell (mrs, ) (Entered: 12/09/2005)
24 PROPOSED CONSENT DECREE by plaintiff Equal Employment Opportunity Commission (Attachments:, # 1 Attachment A - Notice) (mrs, ) (Entered: 03/02/2006)
25 CONSENT DECREE 24; signed by Magistrate Judge Joseph G. Scoville (Attachments: # 1 Attachment A - Notice) (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 03/02/2006)

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