2002 WL 32178986 (N.D.Ga.) (Cite as: 2002 WL 32178986)

Page 1

For Dockets See 1:02CV00829
Call Westlaw CourtExpress at 1-877-DOC-RETR (1-877-362-7387)to order copies of documents related to this or other matters.Additional charges applyUnited States District Court, N.D. Georgia, Atlanta Division. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. APPLEBEE'S NEIGHBORHOOD GRILL AND BAR OF GEORGIA, INC., Defendant. Civil Action No. 1.02-CV-829 March 29, 2002.
Jury Trial Demanded
COMPLAINT
This is an action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the bases of color and retaliation and to provide appropriate relief to the charging party, Dwight Burch, who was adversely affected by such practices. Mr. Burch was subject to harassment on the basis of color by one of Defendant's management employees in violation of Title VII. Moreover, he was fired as a result of his complaining about such harassment, in violation of Title VII.
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 Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) (“Title VII”) and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Northern District of Georgia, Atlanta Division.
PARTIES
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 relevant times, Defendant, Applebee's Neighborhood Grill and Bar of Georgia, Inc. (the “Employer”), has continuously been a Georgia corporation doing business in the State of Georgia and the City of Jonesboro, and has continuously had at least 15 employees.
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2002 WL 32178986 (N.D.Ga.) (Cite as: 2002 WL 32178986)

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5. At all relevant times, Defendant Employer has 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, Mr. Dwight Burch filed a charge with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled.
7. Since at least January 2001, Defendant Employer engaged in unlawful employment practices at its Tara Boulevard, Jonesboro, Georgia, location, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a), and Section 704(a) of Title VII, 42 U.S.C § 2000e-3(a), by subjecting Mr. Burch to (a) Harassment based upon his color, dark-skinned, including unwelcome and inappropriate comments about the dark color of his skin and (b) Retaliatory discharge for exercising rights protected by Title VII.
8. The effect of the practices complained of in paragraph 7, above, has been to deprive Mr. Burch of equal employment opportunities and otherwise adversely affect his status as an employee because of his color.
9. The unlawful employment practices complained of in paragraph 7, above, were intentional.
10. The unlawful employment practices complained of in paragraph 7, above, were done with malice or with reckless indifference to the federally protected rights of Mr. Dwight Burch.
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 conceit or participation with it, from engaging in harassment on the bases of color and retaliation and any other employment practice which discriminates on the basis of color or retaliation.
B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities without retaliation, which prohibit its employees, officers, agents, and others working on its behalf from engaging in harassment on the bases of color, and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant Employer to make whole Mr. Burch, who was adversely affected by Defendant Employer's discriminatory conduct, by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to front-pay and/or rightful-place reinstatement of Mr.
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2002 WL 32178986 (N.D.Ga.) (Cite as: 2002 WL 32178986)

Page 3

Burch.
D. Order Defendant Employer to make whole Mr. Burch by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 7, above, including job-search expenses resulting from the discharge, in amounts to be determined at trial.
E. Order Defendant Employer to make whole Mr. Burch by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 7, above, including emotional pain and suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
F. Order Defendant Employer to pay Mr. Burch punitive damages for its malicious and reckless conduct described in paragraph 7, above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. 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, GWENDOLYN YOUNG REAMS, Associate General Counsel _, S. ROBERT ROYAL, Regional Attorney, Georgia Bar No. 617505 _, AMY ELIZABETH LOGGINS, Trial Attorney, Georgia Bar No. 097862 U.S. EQUAL EMPLOYMENT, OPPORTUNITY COMMISSION, ATLANTA DISTRICT OFFICE, 100 Alabama St., SW, Suite 4R30, Atlanta, Georgia 30303, Telephone: (404) 562-6815, Facsimile: (404) 562-6905
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. APPLEBEE'S NEIGHBORHOOD GRILL AND BAR OF GEORGIA, INC., Defendant. 2002 WL 32178986 (N.D.Ga.)
END OF DOCUMENT

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 r ..

l

I

IN THE UNITED STATES DISTRICT COURT

- . . '~` .c~qnr

FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

~~Ul
CUTH._,~ .

. ~ Mi
` ?0G.1

Plaintiff, v.

CIVIL ACTION N0 . 1 :02-CV-829-CAM

Nuty ~~erk

APPLEBEE'S NEIGHBORHOOD GRILL & BAR OF GEORGIA, INC .,

FILERV,I$N,pC,LCE,RKAh'eSnOtaFFICE

Defendant .

~A.1 ~'m

CONSENT DECREE

B1 /~ w ~ "UeWb CkdC

The action was instituted by the Equal Employment

Opportunity Commission (hereinafter, the "Commission") against

Defendant Applebee's Neighborhood Grill & Bar of Georgia, Inc .

(hereinafter the "Defendant") pursuant to Section 706(f)(a) and

(3) of Title VII of the Civil Rights Act of 1964, as amended, 42

U .S .C . § 2000e et seq . (hereinafter referred to as "Title VII")

and the Civil Rights Act of 1991, 42 U .S .C . § 1981a to remedy

the alleged wrongful employment practices identified in the

Complaint filed in this action .

This Court has jurisdiction of the subject matter of this action and of the parties to this action .

The Commission alleged in the foregoing civil action that

the Defendant acted unlawfully by subjecting Charging Party,

Dwight Burch, to harassment based upon his color and retaliatory

discharge, in violation of Title VII . In its Complaint, the

K41097553-1 11400,99

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Commission sought make-whole relief including, but not limited to, back pay relief, with interest, compensatory and punitive damages, and injunctive and other affirmative relief . The Defendant filed its Answer denying the allegations made by the Commission . Defendant disputes and denies any liability to the Commission and/or Mr . Burch and/or to any other person . This agreement is not to be deemed or construed to be an admission of liability or wrongdoing by Defendant but constitutes the good faith settlement of a disputed claim .
All of the parties to this action desire to avoid the additional expense, delay and uncertainty which would result from the continuance of this litigation and desire to formulate a plan to be embodied in a Consent Decree which will promote and effectuate the purposes of Title VII .
This Court has reviewed the terms of the proposed Consent Decree in light of the pleadings and the applicable law and regulations, and has approved this Consent Decree as one which will promote and effectuate the purposes of Title VII .
Now, therefore, this Court, being fully advised in the premises, it is hereby ORDERED, ADJUDGED AND DECREED :
I . DISCLAIMER OF VIOLATION It is understood and agreed that the negotiation, execution and entry of this Consent Decree, and the undertakings made by Defendant hereunder, are in settlement and compromise of a

KG1W755J-I 11400/99

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disputed claim of alleged color harassment, and retaliatory discharge, the validity of which Defendant denies . Neither the negotiation, execution nor entry of this Consent Decree shall constitute an acknowledgment or admission of any kind by the Defendant that its officers, agents or employees have violated or have not been in compliance with Title VII or any rules and regulations issued under or pursuant to Title VII or any other applicable law, regulation or order .
II . NON-DISCRIMINATION AND NON-RETALIATION Defendant acknowledges its Title VII obligation not to discriminate against any employee or affected group member in any aspect of employment on the basis of color, and not to subject any employee or affected group member to color harassment, and not to retaliate against any person because that person is a beneficiary of the Consent Decree, or has provided information or assistance, or has participated in any other manner in any investigation or proceeding relating to this Consent Decree . Defendant, to ensure equal opportunity in the employment process, acknowledges its obligation to make all decisions affecting hiring, promotion, compensation, job assignment, sick and disability leave, discharge and other terms, conditions and privileges of employment, without regard to race, color, sex, religion or national origin . Defendant further acknowledges its

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obligation not to retaliate or take any adverse action against other persons in the future because of any opposition to practices they believe are in violation of Title VII or because of any participation in the investigation of the charge or prosecution of this litigation .
III . NOTICES TO BE POSTED Defendant shall keep posted at its company-owned restaurants in the State of Georgia, the notice required to be posted pursuant to Section 711 of Title VII and shall also keep conspicuously posted a copy of the notice attached to this Decree at Defendant's company-owned restaurants in the State of Georgia . The posting required by this paragraph shall be conspicuously made on a bulletin board or a location selected so that each employee at the restaurants will observe at least one such posting when at the facility . Defendant shall certify the completion of the posting to the Commission within thirty (30) days from the entry of this Consent Decree . All written certification required by this Section shall be addressed to S . Robert Royal, Regional Attorney at the Commission's Atlanta District Office, 100 Alabama Street, Suite 9R30, Atlanta, Georgia 30303 . Defendant shall not withhold the right of the Commission to enter upon Defendant's premises at its company-owned restaurants

KG 1097553-1 11400199

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in the State of Georgia, with reasonable notice, to monitor compliance with this Section . Should the Notice become defaced, marred, or otherwise unreadable during the time that Defendant owns restaurants in the State of Georgia, Defendant shall ensure that a new, readable copy of the Notice is posted in the same manner as heretofore specified .
IV . HUMAN RESOURCES TRAINING Defendant hereby certifies that in December 2002, Defendant provided anti-discrimination/anti-harassment training for its Executive Director of Field Human Resources, as well as numerous other Human Resources Managers and Human Resources Generalists, including all current Human Resources employees with responsibility over the Defendant's company-owned restaurants in the State of Georgia . Defendant further certifies that the December 2002 training included, at a minimum, the following areas : A . The types of conduct that violate the Defendant's
anti-harassment and retaliation policies, including a reaffirmation of the seriousness of such policies ; B . The attendees' individual responsibilities under the Defendant's anti-harassment policy/procedures, nonretaliation policy/procedures and general nondiscrimination policy/procedures ;
r:c-1097553-1 114ar99

(`

C.

The general responsibilities of Defendant's

supervisors and managers when they learn of alleged

harassment and/or retaliation complaints, whether the

alleged complaints are made formally or informally ;

D.

Defendant's responsibility to conduct a prompt,

thorough and impartial investigation of alleged

harassment and/or retaliation complaints, including

the need to take intermediate measures to ensure that

further harassment and/or retaliation does not occur,

as well as the need to take the necessary overall

remedial measures to correct the effect of any

harassment and/or retaliation ;

E.

Specific training in interviewing and investigative

techniques related to investigating complaints of

harassment and/or retaliation .

Furthermore, for the term of this Consent Decree, Defendant

agrees to provide similar training to any additional Human

Resources Managers and/or Human Resources Generalists hired by

Defendant .

V . INSTRUCTION TO MANAGEMENT

Within thirty (30) days after the entry of this Consent

Decree, Defendant shall certify, in writing, to the Commission

that all management and supervisory personnel who are currently

employed at its restaurants in the State of Georgia have been

KG1097553-1 1140099

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instructed as to the terms of this Consent Decree (other than the monetary amount of the settlement), and the full meaning of the provisions of the Notice to be posted, and that Defendant has reaffirmed with these employees that employment decisions are not to be made on any basis that is prohibited by Title VII . Furthermore, Defendant shall certify that it distributed to such managers and supervisory personnel a written clarification specifying that for purposes of Defendant's anti-harassment and anti-discrimination policies, the terms "race" and "color" are separate terms and that discrimination and/or harassment based on either bases is expressly prohibited by Defendant . All written certification required by this Section shall be addressed to the Regional Attorney at the Commission's Atlanta District Office at the above-referenced address .
VI . REPORTING REQUIREMENT For the duration of time that Defendant owns restaurants in the State of Georgia, Defendant agrees that any formal or informal complaint arising at its Georgia locations, and brought to the attention of management by any employee (s) against any other employee s) or manager s) alleging color harassment and/or retaliation issues which were raised by the Complaint in this civil action and resolved by this Consent Decree shall be reported to the Regional Attorney . Every six months for the duration of this Consent Decree, Defendant shall certify, in

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affidavit form, a summary report to the Regional Attorney

specifying wiietiier an employee has complained about color

harassment and retaliation . If an employee has so complained,

then the summary report shall state in written affidavit form

the following :

A . The date of the complaint or report ; B . The name of the person making the complaint or report ;

C . The name and title of the person against whom the complaint or report was made ;

D.

The nature of the complaint or report

E . The name and title of the Defendant's official who

learned of the complaint or report ;

F . What, if any, action was taken by Defendant in

response to the complaint or report (e .g ., employee

discipline) ; and

G.

A detailed narrative of how the complaint or report

was resolved by the Defendant .

Provided, however, that Defendant's obligation to submit such reports shall cease at such time as Defendant no longer owns or operates restaurants in the State of Georgia . Any report

required by this Section should be addressed to the Regional Attorney in the Commission's Atlanta District Office at the

above-referenced address .

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VII . CHARGING PARTY'S INDIVIDUAL RELIEF : MONETARY RELIEF Cefendant, in settlement of all alleged claims of irjuries sustained due to alleged discriminatory employment practices, shall provide Dwight Burch the total amount of Forty Thousand Dollars ($90,000 .00), in two separate checks made payable to him . The first check will be in the amount of Fifteen Thousand Dollars ($15,000 .00), minus applicable withholding and deductions, characterized as payment for disputed claims of lost back pay . The second check will be in the amount of Twenty-Five Thousand Dollars ($25,000 .00), characterized as payment for disputed claims of emotional distress and Defendant will not withhold from that amount . Both checks will be mailed to Dwight eurch, at 6071 Highway 85, Apt . 36-C, Riverdale, GA 30274 . A copy of said checks will be mailed within five working days of the initial mailing to Mr . Burch to the Commission's Regional Attorney in the Atlanta District Office, at the above-referenced address . The parties expressly recognize that such payment is made without admission of liability on the part of the Defendant
VIII . Defendant agrees that if it receives inquiries from persons or prospective employers seeking a reference or other employment related information regarding Mr . Burch, it shall provide Mr . Burch's dates of employment and the position (s) held by Mr . Burch . Defendant will make no mention to persons or prospective
KG1097553-1 11400/99

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employers seeking a reference of the fact that Mr . Burch filed a charge of discrimination ox that the instant lawsuit was filed . All references received regarding Mr . Burch will be referred to John Prutsman, Executive Director of Field Human Resources, for response by Defendant .
IX . DISCIPLINARY POLICY ON COLOR HARASSMENT AND RETALIATION Defendant certifies that it has an anti-harassment and
anti-discrimination policy that specifically prohibits color harassment and provides for disciplinary action against violators . Defendant certifies it has disseminated its polices that clarify how complaints regarding color harassment should be made to management . Defendant's employees have been advised through such policies that complaints will be promptly investigated and effectively resolved . Defendant further certifies it has advised employees that they will not be retaliated against for complaining about harassment or discrimination (including based on color) . Defendant certifies it has established and implemented a policy with penalties up to and including discharge for employees who are found to have engaged in color harassment in violation of Defendant's policy . Defendant further certifies that employees who commit acts of color harassment shall be admonished and disciplined in accordance with the policy .

KC-1097553 -1 11400199

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X . PROCEDURE FOR ENFORCING COMPLIANCE The Commission will attempt to resolve any dispute regarding the enforcement of this Consent Decree by informal mediation and consultation before seeking enforcement through the judicial process . The Commission will notify Defendants in writing by facsimile and first class mail to Thomas J . McGrath, Associate General Counsel, Applebee's International, Inc ., 9551 W . 107t" Street, Overland Park, KS 66207, if it has any reason to believe that any action or omission by Defendant is in violation of the Consent Decree . Defendant shall have thirty (30) days after the receipt of such notification to cure any such alleged deficiency, and to notify the Commission, by written report addressed to the Regional Attorney for the Commission's Atlanta District Office, of the measures taken to cure the alleged deficiencies . If upon receipt of Defendant's Report the Commission concludes that the deficiency has not been satisfactorily cured by the Defendant, the Commission shall seek to resolve the alleged deficiency through good faith conciliation or mediation . If the alleged deficiency is not resolved within thirty (30) days after the initiation of such good faith conciliation or mediation process, then the Commission may seek enforcement of this Consent Decree through the judicial process . Notwithstanding any of the foregoing, nothing in this agreement shall be deemed to prohibit any matter

KG 1097553-1 1 14 00:99

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74

It

which occurred during the term of this Decree and which constitutes a dispute as contemplated by Section X from being fully and completely processed in the manner described in Section X, even though the dispute is not resolved within thirty (30) days of the termination of this Decree .
XI . COMPLIANCE OFFICIAL Defendant shall designate a compliance official who shall be responsible for compliance with this Consent Decree, and also responsible for coordinating and overseeing Defendant's compliance with this Consent Decree .
XII . TERMS OF DECREE - PERIOD OF JURISDICTION This Consent Decree shall continue to be effective and binding upon the parties to this action for a period for eighteen (18) calendar months immediately following the entry of the Decree, provided that all remedial benefits required hereby have been received or offered prior to its expiration and provided further, that all required reports and certifications are submitted at least thirty (30) days before the expiration date of the Consent Decree . If required reports are not submitted within thirty (30) days of the expiration date or if the remedial benefits are not received or offered, the Consent Decree will be automatically extended until these provisions are completed .

KC-1097557-I 11400i99 12

This Court shall retain jurisdiction over this action for

the purposes of clarifying and enforcing this Consent Decree and

for any other appropriate or equitable purposes for eighteen

(18) calendar months from the date of entry of this Consent

Decree, unless the Court acts or the Commission has, prior to

the expiration of said eighteen (18) month period, moved to

enforce compliance with the Consent Decree . If this Court acts

or the Commission has moved to enforce compliance with this

Consent Decree within this period, this Court shall retain

jurisdiction of this action until all issues relating to all

such motions which are made during the eighteen (18) month

period have been resolved . Thereafter, this Court shall

dissolve this Consent Decree and shall dismiss this cause with

prejudice .

XIII .

OTHER ACTIONS

The Commission shall not commence or prosecute against

Defendant any action or other proceeding based upon any claims,

demands, causes of action, obligations, damages or liabilities

which arise out of EEOC Charge Number 110A12638, investigation

of the charge or this lawsuit . This Consent Decree in no way affects the Commission's right to process any pending or future

charges that may be filed against Defendant or its owners in

accordance with standard Commission procedures, and to commence

civil actions pursuant to Section 706(f) of Title VII on any

KC~ 1097i53-1 11400/99

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such charge . Nothing in this Consent Decree shall be construed to limit or reduce Defendant's obligation to fully comply with Title VII of the Civil Rights Act of 1964, as amended ; the Equal Pay Act of 1963, as amended ; the Age Discrimination in Employment Act of 1967, as amended ; the Americans with Disabilities Act of 19907 or the regulations promulgated pursuant thereto . Nothing herein shall preclude the Commission from bringing an action to enforce the provisions of this Consent Decree .
XIV . COSTS AND ATTORNEYS FEES The Commission and Defendant shall each bear their own respective costs and attorneys fees for this action . The parties hereto and undersigned attorneys of record for the Commission and Defendant in the above-styled action hereby consent to the entry of the foregoing Consent Decree .

BY CONSENT : Counsel for Plaintiff :

i

S . ob rt Royal, Regional Attorney Georgia Bar No . 617505 Marcus G . Keegan
Trial Attorney Georgia Bar No . 410424 EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION ATLANTA DISTRICT OFFICE-LEGAL 100 Alabama Street, SW Suite 9R30 Atlanta, Georgia 30303 (404) 562-6815

UNIT

KC-1047557-1 1 1400199 14

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<

Defendant : Counsel for Defendant :

Robert/ T,! Steinkark AppleA'9~ 's Neighborhood Grill & Bar of Georgia, Inc .

j ~ , \'--y ' r Paul F . Pautler, Jr . Missouri Bar #38057 Black.well Sanders Peper 2300 Main Street, Suite Kansas City, MO 69108
(816) 983-8000

Martin 1000

LLP

K( -0097553-1 IIiU0iV9

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Local Counsel :

t t
Emily S . Blumenthal Georgia Bar #069065 Todd Van Dyke Georgia Bar # Jackson Lewis LLP 1900 Marquis One Tower 295 Peachtree Center Ave, NE Atlanta, GA 30303-1226 (404) 525-8200

APPROVED, DONE, and SIGNED this

ilk day of d~~

, 2003 .

arles A . Moye, Jr . District Judge U .S . District Court of Georgia Northern District of Georgia, Atlanta Division

Kc1097553 -1 11400/99

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[Commission or Defendant letterhead]

NOTICE

1 . This notice to all employees of Applebee's Neighborhood Grill & Bar of Georgia, Inc . (hereinafter the "Company") is being posted as part of the remedy agreed to between the Defendant and the Equal Employment Opportunity Commission in a Consent Decree filed in the United States Federal District Court, Atlanta, Georgia (Case No . 1 :02-CV-829-
CAM) .

2.

Federal law requires, in general, that there be no

discrimination against any employee or applicant for employment because of the person's race, color, religion, sex, pregnant

condition, national origin, disability or age with respect to

hiring, firing, compensation or other terms, conditions or

privileges of employment .

3 . The Company supports and will comply with such Federal Law in all respects and will not take any action against employees because of their sex, pregnant condition, race, color, religion, national origin, disability or age or because they have exercised their rights under the law .

4 . The Company has taken and will continue such remedial action as is required by the consent order entered by the United States District Court .

5 . This Notice will remain posted for eighteen (18)

months until

, 2005, or until such time as Applebee's

Neighborhood Grill & Bar of Georgia, Inc . no longer owns

restaurants in the State of Georgia .

Signed this

day of

, 2003

Applebee's Neighborhood Grill & Bar of Georgia, Inc .
DO NOT REMOVE THIS NOTICE UNTIL <INSERT DATE>

KG1097553-1 11400/99

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 CM/ECF LIVE v3 - U.S. District Court - Docket Report

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4months, CLOSED, LTW
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:02-cv-00829-CAM

EEOC v. Applebee's Neighbor Assigned to: Judge Charles A. Moye, Jr Demand: $0 Cause: 42:2000 Job Discrimination (Race) Plaintiff Equal Employment Opportunity Commission
1 of 5

Date Filed: 03/29/2002 Date Terminated: 07/10/2003 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Amy Elizabeth Loggins Equal Employment Opportunity Commission Atlanta District Office-Legal Unit 100 Alabama Street, S.W. 4R30 Atlanta Federal Center Atlanta, GA 30303-8704 404-562-6932 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Leigh Montgomery Equal Employment Opportunity Commission Atlanta District Office-Legal Unit 100 Alabama Street, S.W. 4R30 Atlanta Federal Center Atlanta, GA 30303-8704 404-562-6932 TERMINATED: 11/12/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcus G. Keegan Miles McGoff & Moore 4360 Chamblee Dunwoody Road Suite 400 Atlanta, GA 30341-1055 770-457-7000 Email: mkeegan@law-ga.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
S. Robert Royal Equal Employment Opportunity Commission
5/31/2007 11:31 AM

CM/ECF LIVE v3 - U.S. District Court - Docket Report

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V.
Defendant Applebee's Neighborhood Grill & Bar of Georgia, Inc.

Atlanta District Office-Legal Unit 100 Alabama Street, S.W. 4R30 Atlanta Federal Center Atlanta, GA 30303-8704 404-562-6820 Email: stan.royal@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chari J. Young Blackwell Sanders Peper Martin 2300 Main Street Suite 1000, Two Pershing Square Kansas City, MO 64108 816-983-8000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily S. Blumenthal Jackson Lewis 245 Peachtree Center Avenue, N.E. 1900 Marquis One Tower Atlanta, GA 30303-1226 404-525-8200 Email: blumente@jacksonlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul F. Pautler, Jr. Blackwell Sanders Peper Martin 2300 Main Street Suite 1000, Two Pershing Square Kansas City, MO 64108 816-983-8000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/29/2002 03/29/2002

#

Docket Text

1 COMPLAINT filed and summons(es) issued. Consent form to proceed before U.S. magistrate and pretrial instructions given to attorney; jury demand (fmm) (Entered: 04/02/2002)
CASE REFERRED to Mag Judge Linda T. Walker (Calendar sheets forwarded and notice sent to counsel) (fmm) (Entered: 04/02/2002)

2 of 5

5/31/2007 11:31 AM

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05/01/2002 05/14/2002 05/21/2002 05/23/2002 05/30/2002 06/03/2002 07/01/2002 07/01/2002 07/01/2002 07/01/2002 07/05/2002 07/15/2002
10/15/2002 10/18/2002 10/23/2002
11/06/2002

2 WAIVER OF SERVICE Returned Executed as to Applebee's Neighbor; mailed 4/4/02; Answer due by 6/3/02 for Applebee's Neighbor (kt) (Entered: 05/03/2002)
3 Applications for admission of Chari J. Young, and Paul F. Pautler Jr. pro hac vice for defendant. (kt) (Entered: 05/16/2002)
4 ORDER by Judge Charles A. Moye Jr. GRANTING [3-1] pro hac vice application of Chari J. Young. (cc) (kt) (Entered: 05/22/2002)
5 ORDER by Judge Charles A. Moye Jr. approving the [3-1] pro hac vice application of Paul F. Pautler, Jr. (cc) (kt) (Entered: 05/24/2002)
6 Attorney appearance for plaintiff by Cynthia Leigh Montgomery. (lme) (Entered: 06/04/2002)
7 ANSWER by defendant to complaint [1-1] Discovery ends 10/31/02 (kt) (Entered: 06/05/2002)
8 ANSWERS TO INITIAL DISCLOSURES by plaintiff. (kt) (Entered: 07/02/2002)
9 Notice of change of firm name by counsel for defendant. (kt) (Entered: 07/02/2002)
10 Certificate of interested persons. (to CAM & LTW) (kt) (Entered: 07/02/2002)
11 ANSWERS TO INITIAL DISCLOSURES by defendant. (kt) (Entered: 07/02/2002)
12 Joint Preliminary Report and Discovery Schedule. (to LTW) (kt) (Entered: 07/08/2002)
13 NOTICE TO PARTIES by Mag Judge Linda T. Walker [12-1] preliminary statement, discovery deadlines is 10/31/02, any mtns for sumjgm. must be filed by 11/20/02, if no mtns for sumjgm., proposed consolidated PTO will be due on 11/30/02 pre-trial order due on 11/30/02 , [13-1] to be submitted on 12/3/02 if parties fail to file mtns for sumjgm. or proposed PTO. (cc) (kt) (Entered: 07/16/2002)
14 MOTION by plaintiff to withdraw by Cynthia Leigh Montgomery as attorney for EEOC . (kt) (Entered: 10/16/2002)
15 Joint MOTION to extend discovery time until 12/16/02 and to extend time until 01/06/03 for filing motions for sumjgm. (to LTW) (kt) (Entered: 10/21/2002)
16 ORDER by Mag Judge Linda T. Walker GRANTING [15-1] joint motion to extend discovery time until 12/16/02, Discovery ends 12/16/02 IT IS FURTHER ORDERED that the parties shall have a corresponding extension of time in which to file any mtns for sumjgm, up to and including 1/6/03. (cc) (kt) (Entered: 10/24/2002)
SUBMITTED to Mag Judge Linda T. Walker on [14-1] motion to withdraw by Cynthia Leigh Montgomery as attorney for EEOC (kt) (Entered: 11/06/2002)

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11/12/2002
12/16/2002 12/17/2002
12/23/2002
12/30/2002 03/04/2003 03/12/2003
03/13/2003 03/13/2003 03/14/2003 03/25/2003
03/27/2003 03/31/2003 04/07/2003
04/10/2003 04/11/2003 04/17/2003

17 ORDER by Mag Judge Linda T. Walker GRANTING [14-1] motion to withdraw by Cynthia Leigh Montgomery as attorney for EEOC. (cc) (kt) (Entered: 11/13/2002)
18 CONSENT MOTION to extend discovery time until 3/16/03 (to LTW) (kt) (Entered: 12/17/2002)
SUBMITTED to Mag Judge Linda T. Walker on [13-1] order pre-trial order due on 11/30/02, [13-2] order [13-1] to be submitted on 12/3/02 if parties fail to file mtns for sumjgm. or proposed PTO. (FILE IN CHAMBERS) (kt) Modified on 12/17/2002 (Entered: 12/17/2002)
19 ORDER by Mag Judge Linda T. Walker GRANTING [18-1] joint motion to extend discovery time until 3/16/03, Discovery ends 3/16/03 (cc) (kt) (Entered: 12/24/2002)
Terminated submissions. (kt) (Entered: 12/30/2002)
20 Attorney appearance for plaintiff by Marcus G. Keegan (ldn) (Entered: 03/05/2003)
21 MOTION by plaintiff for leave of absence of Amy Elizabeth Loggins from 4/1/03 and continuing for 12 weeks with brief in support. (to LTW) (ck) Modified on 03/13/2003 (Entered: 03/13/2003)
22 Notice to take the deposition of SANDRA E. GILL by defendant. (kt) (Entered: 03/17/2003)
23 Notice to take the deposition of ANTHONY J. SEALS by defendant. (kt) (Entered: 03/17/2003)
24 MOTION by plaintiff to extend discovery time until 5/6/3 with brief in support and proposed order. (kt) (Entered: 03/17/2003)
25 ENDORSED ORDER by Judge Charles A. Moye Jr. GRANTING [21-1] motion for leave of absence of Amy Elizabeth Loggins from approximately 4/1/03 and continuing for 12 weeks. (cc) (kt) (Entered: 03/26/2003)
26 Response and opposition by defendant to [24-1] motion to extend discovery time until 5/6/3. (kt) (Entered: 03/31/2003)
SUBMITTED to Mag Judge Linda T. Walker on [24-1] motion to extend discovery time until 5/6/3. (kt) (Entered: 03/31/2003)
27 UNOPPOSED MOTION by defendant to extend time thru 5/8/03 to file dispositve motion with brief in support and prop order. (to LTW) (fmm) Modified on 04/09/2003 (Entered: 04/09/2003)
28 REPLY by plaintiff to response to [24-1] motion to extend discovery time until 5/6/3. (kt) (Entered: 04/11/2003)
29 ORDER by Mag Judge Linda T. Walker GRANTING [27-1] motion to extend time thru 5/28/03 to file dispositve motion. (cc) (kt) (Entered: 04/14/2003)
31 ORDER by Mag Judge Linda T. Walker GRANTING [24-1] motion to extend discovery time until 5/16/3, Discovery ends 5/16/03 (cc) (kt) (Entered: 06/02/2003)

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05/28/2003
05/30/2003
06/11/2003 06/30/2003
06/30/2003
07/01/2003 07/02/2003 07/10/2003 07/10/2003 07/10/2003

30 UNOPPOSED MOTION by defendant to extend time until 6/28/03 to file dispositive motions, with proposed order. (to LTW) (kt) Modified on 05/29/2003 (Entered: 05/29/2003)
32 ORDER by Mag Judge Linda T. Walker GRANTING [30-1] motion to extend time until 6/28/03 in which to file any motions for sumjgm. (cc) (kt) (Entered: 06/03/2003)
33 MOTION by plaintiff to extend discovery time for a period of 30 days after the Court rules on [33-1] motion with proposed order. (kt) (Entered: 06/13/2003)
SUBMITTED to Mag Judge Linda T. Walker on [33-1] motion to extend discovery time for a period of 30 days after the Court rules on [33-1] motion. (kt) (Entered: 06/30/2003)
34 ORDER by Mag Judge Linda T. Walker GRANTING [33-1] motion to extend discovery time for a period of 30 days after the Court rules on [33-1] motion, the disc period shall be extended 30 days from the date of this order; the deadlines for filing sumjgm motions shall be extended accordingly. Discovery ends 7/30/03 (cc) (kt) (Entered: 07/01/2003)
Terminated submissions. (kt) (Entered: 07/01/2003)
Proposed Consent Decree. (to LTW) (kt) (Entered: 07/03/2003)
35 CONSENT DECREE by Judge Charles A. Moye Jr. (cc) (kt) (Entered: 07/11/2003)
Completed referral to Mag Judge Linda T. Walker. (kt) (Entered: 07/11/2003)
Case terminated. (kt) (Entered: 07/11/2003)

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 EEOC SETTLES COLOR HARASSMENT LAWSUIT WITH APPL...

The U.S. Equal Employment Opportunity Commission
FOR IMMEDIATE RELEASE August 7, 2003

CONTACT:

http://www.eeoc.gov/press/8-07-03.html

TTY:

S. Robert Royal Regional Attorney (404) 562-6812 Amy Loggins
Marcus G. Keegan Trial Attorneys (404) 562-6817/8 (404) 562-6801

EEOC Settles Color Harassment Lawsuit With Applebee's Neighborhood Bar and Grill

Charging Party Dwight Burch (right) is pictured in front of Applebee's with EEOC Atlanta Regional Attorney Robert Royal
Rare Bias Case Involves Dark Skin Color of African American Employee
The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of a rare color harassment and retaliation lawsuit under Title VII of the Civil Rights Act of 1964 against Applebee's Neighborhood Bar & Grill, an international restaurant chain headquartered in Overland Park, Kansas. The settlement provides $40,000 to Dwight Burch, an African American former employee who was discriminated against based on his dark skin color by a light skinned African American manager, and terminated when he complained to corporate headquarters.
The lawsuit was resolved through a Consent Decree filed with the U.S. District Court in Atlanta that sets forth the terms of the settlement (Case No. 1:02-CV-829). In addition to the monetary relief for Mr. Burch, the Consent Decree requires training and reporting by Applebee's. Prior to the lawsuit, Applebee's did not have a written policy in effect at any of its nationwide restaurants prohibiting discrimination based on color. Applebee's now has amended its harassment and discrimination policies to include color as a protected basis in accordance with Title VII. In both its Answer to the lawsuit and in the Consent Decree, Applebee's denies any liability or wrongdoing.
Mr. Burch filed a charge of discrimination with the EEOC alleging that the store manager, a light skinned African American, had consistently made derogatory remarks to him about his dark skin color, and had discharged him when he threatened to report the store manager's harassing remarks to Applebee's headquarters office. Mr. Burch began working for Applebee's as a server at its Tara Boulevard, Atlanta, Georgia, location on December 16, 2000. The store manager, assigned to the facility on January 1, 2001, terminated Mr. Burch on March 26, 2001 – less than 90 days after his arrival at the restaurant.
"I am grateful that the EEOC filed this lawsuit, not just for me but for other workers to," said Mr. Burch. "I liked my job and got along well with everyone. No-one should have to put up with mean and humiliating comments about the color of their skin on the job. My mother taught me that we are all God's children and each one of us is special. It makes no difference that these comments are made by someone of your own race. Actually, that makes it even worse. That person should know better, especially if he is a manager."
The EEOC investigated Mr. Burch's allegations and concluded that there was probable cause to believe that the allegations were true. The agency filed suit only after exhausting conciliation efforts to reach a voluntary pre-litigation settlement with the company.
Bernice Williams-Kimbrough, Director of the EEOC's Atlanta District Office, said: "We are pleased that Applebee's has agreed to resolve this case. We are committed to fighting discrimination in all its forms, including issues of color harassment and retaliation for opposing unlawful practices. It is very important that employees are able to engage in protected activity without fear of retaliation. It is equally important that employers realize that ‘color' is a separate protected basis under Title VII. Employers violate federal law when they discriminate based on color, including the harassment of employees because of their

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EEOC SETTLES COLOR HARASSMENT LAWSUIT WITH APPL...

http://www.eeoc.gov/press/8-07-03.html

respective skin colors."
The Commission has observed an increasing number of color discrimination charge filings at agency field offices across the country. Color bias filings have increased by over 200% since the mid-1990s from 413 in Fiscal Year 1994 to 1,382 in FY 2002. The majority of charge filing last fiscal year were in the Northeast (44%), followed by the West (21%), South (15%), Midwest (12.5%), and Southwest (7.5%).
In addition to enforcing Title VII, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment or pregnancy) or national origin and protects employees who complain about such offenses from retaliation, the EEOC enforces the Age Discrimination in Employment Act of 1967, which protects workers age 40 and older from discrimination based on age; the Equal Pay Act of 1963, which prohibits gender-based wage discrimination; the Rehabilitation Act of 1973, which prohibits employment discrimination against people with disabilities in the federal sector; Title I of the Americans with Disabilities Act, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; and sections of the Civil Rights Act of 1991. Further information about the Commission is available on the agency's web site at www.eeoc.gov.
This page was last modified on April 12, 2004.

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