•

l'.S. mSTH:CT UF rOT
NORTHER:" DISTRICT OF TEXAS
F\ "lJLf~T.Jlr...n .Il}

IN THE UNITED STATES DISTRICT FOR THE NORTHERN DISTRICT OF

SEP 282006

DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

CLERK~ISTRiCT COURT BY---,~I-JII:I=-_---­
Deputy

}

CIVIL ACTION NO.

Plaintiff,

}

}

v.

} COMPLAINT

}

BEALL CONCRETE ENTERPRISES, INC., } a wholly owned subsidiary of U. S. Concrete, }

3 - 0 6 CV 1 7 7 9. - II

fu~

}

}

JURY TRIAL DEMANDED

}

Defendant.

}

NATURE OF THE ACTION This is an action under Title I of the American with Disabilities Act of 1990, and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Charles Gentry and a class of similarly situated individuals who were adversely affected by such practices. Specifically, Defendant discriminated against Mr. Gentry and similarly situated individuals by failing to provide them with a reasonable accommodation and then terminating their employment due to a record of a disability.
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 107(a) ofthe Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.c. § 12117(a), which incorporates by reference Section 706(t)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(t)(1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991,42 U.S.C. Section 1981a.

~------~

----

• •

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 Northern District of

Texas.

PARTIES

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

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

enforcement of Title I of the ADA and is expressly authorized to bring this action by Section

107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference 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, Beall Concrete Enterprises, Inc. ("Defendant"),

has continuously been and is now doing business in the State of Texas and has continuously

employed at least fifteen employees.

5. At all relevant times, Defendant has continuously been an employer engaged in an

industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C. § 12111(5), and

Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Section

701(g) and (h) of Title VII, 42 U.S.C. § 2000e(g) and (h).

6.

At all relevant times, Defendant has continuously been a covered entity under

Section 101(2) of the ADA, 42 U.S.C. Section 12111(2).

STATEMENT OF CLAIMS

7. More than thirty days prior to the institution of this lawsuit, Charles Gentry filed

a charge with the Commission alleging violation of the ADA by the Defendant. All conditions

precedent to the institution of this lawsuit have been fulfilled.

2

• •
8. Since May 20, 2004, the Defendant has engaged in conduct in violation of Section 102(b)(5)(A) of Title I of the ADA, 42 U.S.C. § 12112(b)(5)(A), and Section 102(a) of Title I of the ADA, 42 U.S.c. § 12112(a), by failing to provide Charles Gentry and similarly situated individuals with a reasonable accommodation, and then terminating their employment due to their record of a disability, pursuant to a policy requiring the termination of employees after 12 months of medical leave without providing a reasonable accommodation to individuals who are disabled under the ADA.
9. Since July 2004, the Defendant has engaged in conduct in violation of Section 102(b)(5)(B) of Title I of the ADA, 42 U.S.C. § l2112(b)(5)(B), by failing to rehire Charles Gentry based on his record of a disability.
10. The effect of the practices complained of in paragraphs 8 and 9, above, has been to deprive Charles Gentry and similarly situated individuals of equal employment opportunities and otherwise adversely affect their status as employees because of their record of disability.
11. The unlawful employment practices complained of in paragraphs 8 and 9 were intentional.
12. The unlawful employment practices complained of in paragraph 8 and 9 were committed with malice or with reckless indifference to the federally protected rights of Charles Gentry and similarly situated individuals.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining the Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of disability.
3

• •
B.. Order the Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities, and which eradicate the effects of its past and present unlawful employment practices.
D. Order the Defendant to make whole Charles Gentry and a class of similarly situated individuals by providing appropriate back pay with prejudgment interest in amounts to be determined at trial, front pay, pecuniary losses, compensatory damages including out-ofpocket expenses, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to rightful place reinstatement of Charles Gentry and similarly situated individuals.
E. Order the Defendant to make Charles Gentry and similarly situated individuals whole by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 8 above, including but not limited to out of pocket medical expenses and job hunting expenses.
F. Order the Defendant to make Charles Gentry and a class of similarly situated individuals whole by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described in paragraph 8 above, including but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of consortium, and loss of enjoyment of life, in amounts to be determined at trial.
G. Order the Defendant to pay Charles Gentry and similarly situated individuals punitive damages for its intentional, malicious conduct or reckless indifference described and referenced in paragraph 8 above, in an amount to be determined at trial.
H. Grant such further relief as the Court deems necessary and proper in the public interest.
4

• •

1.

Award the Commission its costs in this action.

JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its Complaint.
Respectfully submitted,
RONALD S. COOPER General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General ~
~tM~->--RO RT A. CANINO Regional Attorney Oklahoma State Bar No. 011782 ~td~ TO W. COSTAS Supervisory Trial Attorney Texas State Bar No. 04855720
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, Texas 75202 (214) 253-2760 (telephone) (214) 253-2749 (facsimile)

5

~JS44 G\~"''' • • (Rev 11/04)
civ~~eet 'he JS 44

CIVIL COVER SHEET
and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as providec

Iy local rules Mourt. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose ofmitiatin~

he ci1.il docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM)

~. (a)" PLAINTIFFS

DEFENDANTS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

BEALL CONCRETE ENTERPRISES, INC., a wholly owned subsidiary of
U. S. Concrete, Inc.

(b) County of Residence of First Listed Plaintiff

__ - - - - - .

c (EXCEPT IN U.S. P~ AINTIFR'E~J:'I \-' ~

County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLy)

NOTE' IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED

2W2000 (c) Attorney's (Firm Name, Address, and Tele hone umSfD

'7.'7nj? TOBY W. COSTAS, EEOC, 207 S. Houston St., rd FI. Dallas. Texas.

(;i p7!'0

C

LER 'T'

K'L<:~U.D.

S DIS
Q!cT

TRI
,,:C

T
LO

F

au
TE;-(AS

Attorneys (If Known)
3 - 0 6 CV 1 '1 7 9. - I

II. BASIS OF JURISDICTION (Place an 'J\, m One Box Only)

11 U.S. Government Plainltff

0 3 Federal Question
(U S Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Placean "X"m One Box forPlamtifi

(For D,versIty Cases Only)

and One Box for Defendant)

CItizen of ThIs State

PTF DEF
0 1 0 I Incorporated or Pnncipal Place

PTF DEF
0 4 04

of Busmess In Th,s State

J 2 U S. Government
Defendant

o 4 DiverSIty
(IndIcate CitIzenship of Parties in Item III)

IV NATURE OF SUIT (Placean"X"inOneBoxOnly)

CONTRACT

TORTS

J 110 Insurance

PERSONAL INJURY

PERSONAL INJURY

J 120 Marine

0 310 Airplane

0 362 Personal InjUry -

J 130 Miller Act

0 315 Airplane Product

Med. MalpractIce

J 140 NegotIable Instrument

Liabihty

0 365 Personal injury -

J 150 Recovery of Overpayment 0 320 Assault, LIbel &

Product Liablhty

& Enforcement of Judgment

Slander

0 368 Asbestos Personal

J 151 Medicare Act

0 330 Federal Employers'

Injury Product

J 152 Recovery of Defaulted

Liability

LIability

Student Loans

0 340 Manne

PERSONAL PROPERTY

(Excl. Veterans)

0 345 Marine Product

0 370 Other Fraud

J 153 Recovery of Overpayment

Llablhty

0 371 Truth m Lendmg

of Veteran's Benefits

0 350 Motor VehIcle

0 380 Other Personal

J 160 Stockholders' Suits

0 355 Motor Vehicle

Property Damage

J 190 Other Contract

Product Liabihty

0 385 Property Damage

J 195 Contract Product Llablhty 0 360 Other Personal

Product Llabihty

J 196 Franchise

Injury

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS

J 210 Land Condemnation J 220 Foreclosure

~:41 Voting
442 Employment

0 510 MotIons to Vacate
Sentence

J 230 Rent Lease & Ejectment

443 Housmgi

Habeas Corpus:

J 240 Torts to Land

Accommodations

0 530 General

J 245 Tort Product Liabihty

0 444 Welfare

0 535 Death Penalty

J 290 All Other Real Property 0 445 Arner. wlDisablltlJes - 0 540 Mandamus & Other

Employment

0 550 Civil Rights

0 446 Arner. wlDisabllitles - 0 555 Prison Condition

Other

0 440 Other Civil RIghts

CitIzen of Another State
CItIzen or Subject of a Forellm Countrv

o 2
03

0 2 Incorporated and Principal Place of Business In Another State
o 3 ForeIgn Nation

o5 05
o 6 06

FORFEITUREIPENAL TY
0 610 Agnculture 0 620 Other Food & Drug 0 625 Drug Related Seizure
of Property 21 USC 881
0 630 LIquor Laws 0 640 R.R & Truck 0 650 Airhne Regs 0 660 Occupational
SafetylHealth
0 690 Other
LAB.DR
0 710 FatrLabor Standards
Act
0 720 LaborlMgmt. RelatIons 0 730 LaborlMgmt Reporting
& Disclosure Act
0 740 RaIlway Labor Act 0 790 Other Labor litIgatIon 0 791 Empl Ret. Inc
Security Act

BANKRUPTCY
o 422 Appeal 28 USC 158 o 423 Withdrawal
28 USC 157
PROPER Y RH, HTS
o 820 Copyrights o 830 Patent o 840 Trademark
SOCIAL SECURITY
o 861 HIA (I 395ft) o 862 Black Lung (923) o 863 D1WCIDIWW (405(g)) o 864 SSID TItle XVI o 865 RSI (405(g))
FEDERAL TAX SUITS
o 870 Taxes (U.S. Plainttff
or Defendant)
o 871 iRS-Third Party
26 USC 7609

OTHER STATUTES
0 400 State Reapportionment 0 4 \0 Antitrust 0 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced and
Corrupt Organizations
0 480 Consumer Credit 0 490 Cable/Sat TV 0 810 Selective ServIce 0 850 Securities!Commodities!
Exchange
0 875 Customer Challenge
12 USC 3410
0 890 Other Statutory ActIons 0 891 Agricultural Acts 0 892 Economic StablhzatlOn Act 0 893 Environmental Matters 0 894 Energy Allocation Act 0 895 Freedom oflnformatlon
Act
0 900Appeal of Fee Determmatiol
Under Equal Access
to Justice
0 950 ConstitutIOnalIty of
State Statutes

(place an "X" in One Box Only)

o 2 Removed from

0 3 Remanded from

o o 4

0 5 Transferred from 0 6

Reinstated or

another district

Multidistrict

Appeal to District

7

Judge from Magistrate

State Court

A ellate Court

Reo ned

s eci

Liti ation

Jud ment

Cite th~ U.s. Civil Statute u.nder \Yhi<;h.y,O\l are filing _(D,I1 not cit~ .iJ!risdil:"tiolial sta1.lIte~ unless diversity):
Title 1 of Amencan With DisabIlItIes Act on y90 ana Title 1 ot the CivIl RIghts act of 1991.

VI. CAUSE OF ACTION Brief descrip.tion of cause:
Def. discriminated against Gentry, failed to provide reasonable accommodation & terminated employment.

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND $

CHECK YES only if demanded in complaint:

JURY DEMAND:

0 Yes 0 No

VIII. RELATED CASE(S)
IF ANY

(See instructions):

JUDGE

DOCKET NUMBER

)ATE I'OR OFFICE USE ONLY

SIGNATURE OF ATTORNE~
dobvt Co

-------------- RECEIPT # --------- AMOUNT

- - - - - - - APPLYING IFP

JUDGE

MAG. JUDGE ----------------

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff,

}

}

v.

}

}

BEALL CONCRETE ENTERPRISES, LTD., }

d/b/a Redi-Mix and Redi-Mix Concrete,

}

a wholly owned subsidiary of U. S. Concrete, }

Inc.

}

}

}

Defendant.

}

CIVIL ACTION NO. 3:06-CV-1779-M
ECF
JURY TRIAL DEMANDED

PLAINTIFF’S FIRST AMENDED COMPLAINT

This is an action under Title I of the Am ericans with Disabilities Act of 1990, the Age Discrimination in Em ployment Act and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of disability and ag e, and to provide appropriate relief to Charles Gentry and a class of si milarly situated individuals who were adversely affected by such practices. Specificall y, Defendant discrim inated against Mr. Gentry and similarly situated individuals by failing to provide th em with a reasonable accommodation and then terminating their employment due to a record o f a disability. The Commission further alleges that Mr. Gentry was terminated based on his age, and then denied rehire based on his record of a disability and his age.
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 107(a) of the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12117(a), which incorporates by reference Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3); Section 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sec. 626(b) (the “ADEA”), which incorporates by reference Sections 16(c) and 17 of the Fair Labor Standards Act of 1938 (the “FLSA”), as amended, 29 U.S.C. Sec. 216(c) and 217; and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. Section 1981a.
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 Northern District of Texas.
PARTIES 3. Plaintiff, Equal Employment Opportunity Commission (the "Commission"), is an agency of the United States of Am erica charged with the adm inistration, interpretation and enforcement of Title I of the ADA and is expre ssly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3), and by S ection 7(b) of the ADEA, 29 U.S.C. Sec. 626(b), as am ended by Section 2 of Reor ganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant tim es, Defendant, Beall Concrete Enterprises, Ltd. (“Defendant”), has continuously been and is now doing busine ss in the State of Texas and has continuously employed at least twenty employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting comm erce under Section 101( 5) of the ADA, 42 U.S.C. § 1 2111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7) , which incorporates by reference Section

701(g) and (h) of Title VII, 42 U.S.C. § 2000e(g) a nd (h), and Sections 11( b) (g) and (h) of the

ADEA, 29 U.S. C. Secs. 630(b), (g), and (h).

6.

At all relevan t times, Defendant has continuously been a covered en tity under

Section 101(2) of the ADA, 42 U.S.C. Section 12111(2) and within the meaning of Section 11(b)

of the ADEA, 29 U.S.C. Sec. 630(b).

STATEMENT OF CLAIMS

7. More than thirty days prior to the institution of this lawsuit, Charles Gentry filed

a charge with the Commission alleging violation of the ADA and the ADEA by the Defendant.

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

8. Since May 20, 2004, the Defendant has engaged in conduct in violation of Section

102(b)(5)(A) of Title I of the ADA, 42 U.S.C. § 12112(b)(5)(A), and Section 102(a) of Title I of

the ADA, 42 U.S.C. § 12112(a), by failing to provide Charles Gentry and similarly situated

individuals with a reasonable accommodation, and then terminating their employment due to

their record of a disability, pursuant to a policy requiring the termination of employees after 12

months of medical leave without consideration of providing a reasonable accommodation to

individuals who are disabled under the ADA.

9. Since July 2004, the Defendant has engaged in conduct in violation of Section

102(b)(5)(B) of Title I of the ADA, 42 U.S.C. § 12112(b)(5)(B), by failing to rehire Charles

Gentry based on his record of a disability.

10. Since May 20, 2004, the Defendant has engaged in unlawful employment

practices by discharging and failing to rehire Charles Gentry based on his age in violation of

Section 4 of the ADEA, 29 U.S.C. Sec. 623(a).

10. The effect of the practices complained of in paragraphs 8 and 9, above, has been to deprive Charles Gentry and similarly situated individuals of equal employment opportunities and otherwise adversely affect their status as employees because of their record of disability.
11. The effect of the practices complained of in paragraph 10, above, has been to deprive Charles Gentry of equal employment opportunities and otherwise adversely affect his status as an employee because of his age.
12. The unlawful employment practices complained of in paragraphs 8 and 9 were intentional.
13. The unlawful employment practices complained of in paragraph 8 and 9 were committed with malice or with reckless indifference to the federally protected rights of Charles Gentry and similarly situated individuals.
14. The unlawful employment practices complained of in paragraph 10 were willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. Sec. 626(b).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a per manent injunction en joining the Defendant, its officers, successors, assigns, and all perso ns in activ e concert o r participation with it, from engaging in any employment practice which discriminates on the basis of disability and age. B.. Order the D efendant to institute and carry out policies, practices, and program s which provide equal employm ent opportunities, and which eradicate the effe cts of its past and present unlawful employment practices. D. Order the Defendant to m ake whole Charles Gentry and a class of si milarly situated individuals by providi ng appropriate back pa y with prejudgment interest in am ounts to

be determined at tr ial, front pay, pecuniary losses, com pensatory damages including out-ofpocket expenses, liquidated dam ages and other a ffirmative relief necessary to e radicate the effects of its unlawful em ployment practices, including but not limited to rightful place reinstatement of Charles Gentry and similarly situated individuals.
E. Order the D efendant to m ake Charles Gentry and sim ilarly situated individuals whole by providing compensation for past a nd future pecuniary losses resulting from the unlawful employment practices described in pa ragraph 8 and 9, above, including but not lim ited to out of pocket medical expenses and job hunting expenses.
F. Order the Defendant to make Charles Gentry and a class of si milarly situated individuals whole by providing com pensation for past and f uture non-pecuniary losses resulting from the unlawful em ployment practices descri bed in paragraph 8 and 9, above, including but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of consortium, and loss of enjoyment of life, in amounts to be determined at trial.
G. Order the Defendant to pay Charles Ge ntry and sim ilarly situated individuals punitive damages for its in tentional, malicious conduct or reckless ind ifference described and referenced in paragraph 8 and 9, above, in an amount to be determined at trial.
H. Grant such further relief as the Co urt deems necessary an d proper in the public interest.
I. Award the Commission its costs in this action.
JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its Complaint.
Respectfully submitted,

JAMES Deputy GW Associate
(214)

RONALD S. COOPER General Counsel
L. LEE General Counsel
ENDOLYN YOUNG REAMS General Counsel
s/ROBERT A. CANINO ROBERT A. CANINO Regional Attorney Oklahoma State Bar No. 011782
s/TOBY W.COSTAS TOBY W. COSTAS Supervisory Trial Attorney Texas State Bar No. 04855720
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, Texas 75202 (214) 253-2760 (telephone)
253-2749 (facsimile)

 
 Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

Plaintiff,

§

§

v.

§ CIVIL ACTION NO. 3:06-CV-1779-O

§

BEALL CONCRETE ENTERPRISES §

INC., a wholly owned subsidiary of

§

U.S. Concrete, Inc.,

§

Defendant.

§

MEMORANDUM OPINION AND ORDER

Before the Court are:

1. Defendant’s Motion for Partial Summary Judgment on Plaintiff’s Claims
Under the Americans with Disabilities Act, (Doc. # 22) filed November 14, 2007;1

2. Defendant’s Amended Brief in Support of Motion for Partial Summary
Judgment on Plaintiff’s Claims Under the Americans with Disabilities Act (Doc. # 26) filed December 18, 2007;2

3. Appendix to Documents Cited in Defendant’s Amended Brief in Support of
Motion for Partial Summary Judgment on Plaintiff’s Claims Under the American with Disabilities Act (Doc # 27) filed December 18, 2007;3

4. Plaintiff EEOC’s Brief in Opposition to Defendant’s Partial Motion for Summary Judgment, (Doc # 24) filed December 14, 2007;4 and

5. Appendix to Documents Cited in Plaintiff EEOC’s Response in Opposition to Defendant’s Motion for Partial Summary Judgment, (Doc. # 25) filed

1 References to this pleading will be abbreviated as “Def’s Mot. at” followed by a page number. 2 References to this pleading will be abbreviated as “Def’s Br. at” followed by a page number. 3 References to this pleading will be abbreviated as Def’s App. at” followed by a page number. 4 References to this pleading will be abbreviated as “Plaintiff’s Br. at” followed by a page number.
1

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 2 of 14
December 14, 2007.5 Having reviewed the relevant filings, the evidence, and the law applicable to the issues raised, the Court finds that Defendant’s Motion for Partial Summary Judgment should be and is hereby GRANTED.
I. BACKGROUND This is an employment discrimination case. The suit is brought by the Equal Employment Opportunity Commission (“EEOC”) on behalf of Charles Gentry alleging violations of the Americans with Disabilities Act of 1990 (“ADA”) pursuant to 42 U.S.C. §12117(a), which incorporates by reference § 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3); and claims of age discrimination pursuant to 29 U.S.C. § 626(b) (“ADEA”), which incorporates by reference 29 U.S.C. §§ 216(c), 217; and 42 U.S.C. 1981a. (Am. Compl. at 2). Defendant moves for partial summary judgment only regarding the EEOC’s claims under the ADA. Thus, the Court will detail the undisputed facts that relate to this claim. Charles Gentry (“Mr. Gentry”) was employed with Defendant Beall Concrete Enterprises, Inc. (“Beall”) from approximately August 1999 to June 22, 2004 in the position of Redi-Mix Truck Driver. (Plaintiff’s App. at 1, 4; Def’s App. at 21). Mr. Gentry sustained an injury on June 17, 2003, while he was at work. (Plaintiff’s App. at 1; Def’s App. at 25-47). Specifically, Mr. Gentry encountered a problem when he attempted to unhook the elevated chute from the cement truck he had been assigned to drive. (Plaintiff’s App. at 1, 77-80; Def’s App. at 3-6). After a mechanic could not fix the problem, Mr. Gentry tried to resolve the problem by standing on the chute at which time he lost his balance and fell approximately eight feet causing injuries to his back, shoulder, hip,
5 References to this pleading will be abbreviated as “Plaintiff’s App. at” followed by a page number.
2

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 3 of 14
elbow, and wrist. (Plaintiff’s App. at 1, 81-89; Def’s App. at 3-6, 25-47). Following this on-the-job accident, Mr. Gentry was on medical leave until his treating physicians released him to perform light-duty work with a lifting restriction of 10 pounds on October 16, 2003. (Plaintiff’s App. at 1-2; Def’s App. at 28-30). Mr. Gentry worked under this light-duty restriction from October 20, 2003 to November 23, 2003. (Plaintiff’s App. at 2; Def’s App. at 8, 31). Mr. Gentry then underwent surgery for the injury to his wrist on November 24, 2003. (Plaintiff’s App. at 3; Def’s App. at 31). Mr. Gentry was not released to return to work following this surgery until May 20, 2004, and such release was limited, for two weeks, to a six-hour work day. (Plaintiff’s App. at 3; Def’s App. at 46). Mr. Gentry, however, did not return to work. (Plaintiff’s App. at 4; Def’s App. at 10-11). Patti Reardon, Beall’s Human Resources Director, contacted Mr. Gentry on June 22, 2004 to inform him that his employment was being terminated due to his violation of the company’s policy on leaves of absence. (Plaintiff’s App. at 4; Def’s App. at 16, 21).
Beall’s policy on leaves of absence provides: Maximum Period of Absence No employee may be off work for any reason (personal leave, medical leave, on-thejob injury, etc.) more than 12 consecutive months. Any employee who is off work more than 12 consecutive months will be terminated. (Plaintiff’s App. at 43). Following his termination, Mr. Gentry reapplied for a employment with Beall, but was not rehired. (Plaintiff’s App. at 4, 149-50; Def’s App. at 22). Defendant contends its decision not to rehire Mr. Gentry was based on a determination that he was an unsafe employee. (Def’s App. at 22; Plaintiff’s App. at 149-50). Mr. Gentry subsequently filed a charge of discrimination with the EEOC, which resulted in the initiation of this action against Defendant Beall. Defendant moves for partial summary judgment regarding the EEOC’s claims under the ADA on the grounds that (1) Mr. Gentry is not disabled as defined in the ADA; and (2) injunctive
3

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 4 of 14
relief is not warranted because its one-year leave policy does not violate the ADA. (Def’s Br. at 9, 15).
II. STANDARD OF REVIEW Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. The movant makes a showing that there is no genuine issue of material fact by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c). Once the movant makes this showing, the non-movant must then direct the court’s attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this burden, the “opponent must do more than simply show . . . some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-movant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249. While all of the evidence must be viewed in a light most favorable to the motion’s opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant’s summary
4

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 5 of 14
judgment burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). “[T]he party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim.” Id. (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)). Summary judgment in favor of the movant is proper if, after adequate time for discovery, the motion’s opponent fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
III. ANALYSIS By the instant motion for partial summary judgment, Defendant argues that Plaintiff has not shown any violation of the ADA because Mr. Gentry is not a disabled individual within the meaning of the ADA and its one-year leave policy, which is applied equally to all employees is on its face a reasonable accommodation. (Def’s Br. at 9, 15). Plaintiff responds that Mr. Gentry was disabled and protected by the ADA “because he had a record of a substantially limiting impairment.” (Plaintiff’s Br. at 17). Further, Plaintiff argues that Defendant’s finite one-year leave policy is not a reasonable accommodation under the ADA. (Plaintiff’s Br. at 22). Thus, Plaintiff asks the Court to deny Defendant’s motion for summary judgment in its entirety. A. “Disability” Under the ADA The ADA prohibits discrimination on the basis of disability, and expressly defines such discrimination to include: not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose and undue hardship on the operation of the business of such covered entity.
5

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 6 of 14
42 U.S.C. § 12112(b)(5)(A). To establish a prima facie case of employment discrimination under the ADA, “a plaintiff must establish that [he] is a qualified individual with a disability and that the negative employment action occurred because of the disability.” Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998) (citing 42 U.S.C. § 12112(a))). Thus, the threshold inquiry is whether the individual suffered from a disability. Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1050 (5th Cir. 1998).
1. Impairment Substantially Limiting Major Life Activities Defendant’s primary argument is that the Plaintiff has failed to show that Mr. Gentry is “disabled” within the meaning of the ADA. Specifically, Defendant argues that Mr. Gentry did not suffer from a physical impairment that substantially limited one or more major life activities because his condition resulting from his on-the-job injury was only temporary. (Def’s Br. at 9). Under the ADA, an individual can show a qualifying disability if it is established that he suffers from: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). A physical or mental impairment is any physiological disorder or condition, cosmetic disfigurement, anatomical loss, or any mental or psychological disorder. 29 C.F.R. App. §1630.2(h). “Merely having an impairment does not make one disabled for purposes of the ADA.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002). Rather, Plaintiff must show that Mr. Gentry’s injury limits his “major life activities” in a “substantial” manner. 42 U.S.C. § 12102(2)(A). Major life activities include caring for oneself, performing manual tasks, walking, seeing,
6

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 7 of 14
hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). An impairment substantially limits a major life activity when the individual is
(i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(i)(1)(i), (ii). “Whether an impairment is substantially limiting is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long term impact.” Hamilton, 136 F.3d at 1050; see also 29 C.F.R. §1630.2(i)(2)(i), (ii), (iii). The Supreme Court has held that Plaintiff must show that the impact of the impairment was permanent or long term in order to show a disability covered under the ADA. Toyota, 534 U.S. at 198. The summary judgment record shows that Mr. Gentry suffered injuries to his back, shoulder, hip, elbow and wrist on June 17, 2003. (Plaintiff’s App. at 1, 81-89; Def’s App. at 3-6, 25-47). On May 20, 2004, he was given a medical release with only a two-week restriction limiting his work day to six hours. (Plaintiff’s App. at 3; Def’s App. at 46). Plaintiff admits that by June 3, 2004, he had a full duty medical release. (Plaintiff’s App. at 3-4). Plaintiff has not come forward with any evidence that shows he suffered from any permanent or lasting impairment beyond June 3, 2004. See Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 646 (2nd Cir. 1998) (holding a sevenmonth impairment of plaintiff’s inability to work was too short in duration to be “substantially limiting”). In other words, Mr. Gentry has failed to produce any summary judgment evidence showing that the impairment he suffered as a result of the June 17, 2003 on-the-job injury
7

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 8 of 14
substantially limited his performance of a major life activity permanently or over a long period of time. See Hamilton, 136 F.3d at 1051 (holding that because impairment was only temporary; Plaintiff did not have a disability under the ADA); see also Dudley v. United Parcel Service, No. H-96-1803, 1998 WL 404361 at *4 (S.D. Tex. Feb. 6, 1998) (“A temporary physical incapacity is not a physical or mental impairment that substantially limits one or more major life activities.”). Viewing the evidence in the light most favorable to Plaintiff, the Court finds there are no genuine issues of material fact that Mr. Gentry’s on-the-job injury resulted in a permanent or lasting impairment substantially limiting a major life activity that would constitute a disability within the meaning of the ADA.
2. Record of an Impairment Defendant also moves for summary judgment on the grounds that Mr. Gentry does not have a disability under the ADA because there is no evidence of a record of impairment. (Def’s Br. at 10). Plaintiff responds that summary judgment should be denied because there are genuine issues of material fact regarding whether Mr. Gentry had a record of disability. (Plaintiff’s Br. at 17; see also Am. Compl. at 3, ¶8). To establish a disability under the second prong of the ADA definition, Plaintiff must show that at some point in the past, Mr. Gentry “was classified or misclassified as having a mental or physical impairment that substantially limits a major life activity.” Sherrod, 132 F.2d at 1120; Ellison v. Software Spectrum, Inc., 85 F.3d 187 (5th Cir. 1996) (citing 29 C.F.R. § 1630.2(k)). Further, to meet this definition, it is not enough if a plaintiff shows a record of an adverse medical diagnosis; “in order to establish the existence of a disability under § 12102(2)(B) there must be a record of an impairment that substantially limits one or more of the ADA plaintiff’s major life
8

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 9 of 14
activities.” EEOC v. R.J. Gallagher Co., 181 F.3d 645, 655 (5th Cir. 1999). Accordingly, a claim involving discrimination based on a record of impairment requires a Plaintiff to show both that “(1) the plaintiff has a record or history of impairment; and (2) the impairment limits a major life activity.” Blanks v. Southwestern Bell Communications, Inc., 310 F.3d 398, 402 (5th Cir. 2002) (citing Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 615 (5th Cir. 2001) (“Although an individual may show that he or she has a record of impairment, if he or she fails to show that the impairment is substantially limiting, the individual may not qualify as disabled.”)).
Plaintiff relies on evidence in Mr. Gentry’s affidavit that states his impairment prevented him from being able to take care of himself between the time of the accident in June 2003 through the spring of 2004,6 and the Texas Worker’s Compensation Status Reports (“TWC Reports”) that discussed Mr. Gentry’s injuries and medical restrictions. (Plaintiff’s Br. at 18; Plaintiff’s App. at 1- 3, 19-20, 26-27). Defendant argues that Plaintiff cannot establish a record of impairment because his condition was temporary and the TWC Reports were uninformative and lacking in any particular details about Mr. Gentry condition. (Def’s Br. at 7, 12).
While the summary judgment evidence tends to show record of the nature and severity of Mr. Gentry’s injuries, as well as his medical treatment from the time of the accident to May 2004, there is no evidence that such impairment constitutes a disability; i.e. that the impairment substantially limited a major life activity. Dupre, 242 F.3d at 615; see also Bennett v. Calabrian Chems. Corp., 324 F.Supp.2d 815, 832 (E.D. Tex. 2004) (holding there was no record of impairment where there was no evidence the impairment substantially limited a major life function) (citing
6 Plaintiff expressly admits that it does not claim Mr. Gentry “has a record of being substantially limited in the major life activity of ‘working’.” (Plaintiff’s Br. at 22).
9

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 10 of 14
Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996) (finding that advising supervisor of asbestosis diagnosis and having condition noted in personnel file were evidence of history of an impairment but not of a disability because it did not substantially limit a major life activity)). As noted above, a plaintiff must show that the impact of the impairment on the ability to perform a major life activity is permanent or long-term in order to show a disability covered under the ADA. Hamilton, 136 F.3d at 1051. Here, the undisputed evidence shows that Mr. Gentry suffered no lasting or permanent effects from the impairment and his last TWC report dated May 20, 2004 only limited the 6-hour work day restriction to two weeks. (Plaintiff’s App. at 2-3, 26-27; Def’s App. at 46). Plaintiff has therefore failed to meet its burden to come forward with evidence that establishes a genuine issue of material fact as to whether Mr. Gentry had a record of a disability.
3. Regarded as Having a Disability Defendant next argues there is no evidence that it ever regarded Mr. Gentry as having a disability. (Def’s Br. at 13). Plaintiff’s entire response focuses solely on its claim that Mr. Gentry had a record of impairment and does not specifically address Defendant’s argument that Mr. Gentry was never regarded as having a disability. Plaintiff expressly states that “[i]n its Complaint, the EEOC alleged that Defendant discriminated against Charles Gentry due to his record of a disability.” (Plaintiff’s Br. at 17, n.4; Am. Compl. at 3, ¶8). Nonetheless, because the EEOC generally alleged in its complaint that Defendant discriminated against its employees because of a disability, the Court will therefore address the merits of this issue . (Am. Compl. at 1). Although Mr. Gentry does not have a physical impairment which substantially limits him in a major life activity, he may still fall within the ADA’s definition of disabled if he can show that Beall regarded him as being disabled. 42 U.S.C. § 12102(2)(C). Under the EEOC regulations, an
10

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 11 of 14
individual may be regarded as disabled by an employer in one of three ways; if the individual has (1) a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) none of the impairments defined [in this section] but is treated by a covered entity as having a substantially limiting impairment.
29 C.F.R. § 1630.2(l). As applicable to Mr. Gentry, the relevant provision is where an employee does not actually have a physical impairment that substantially limits a major life activity, but he is treated by his employer as having such an impairment. 29 C.F.R. § 1630.2(l) (3). In construing this section, the Fifth Circuit has held that “[a]n employer does not necessarily regard an employee as having a substantially limiting impairment simply because it believes that [he] is incapable of performing a particular job.” Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 806 (5th Cir. 1997). Instead, the inquiry focuses on whether the employer regarded the employee as substantially limited in his ability to work generally in the type of employment involved. Id. “For an employer to regard an impairment as substantially limiting work, the employer must regard an individual as significantly restricted in his ability to perform a class or broad range of jobs.” Hamilton, 136 F.3d at 1051-52.
Viewing the record as a whole, in the light most favorable to Plaintiff, there is little evidence that anyone at Beall regarded Mr. Gentry as disabled. The only summary judgment evidence is Mr. Gentry’s statements that Mr. Shults, Beall’s safety director, inquired whether Mr. Gentry gave any thought to other type of work because being a mixer truck driver was hard work and Shults did not think Mr. Gentry could handle it. (Plaintiff’s App. at 3). Assuming for purposes of summary judgment that this statement is true, it is insufficient to show that Beall regarded Mr. Gentry as
11

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 12 of 14
disabled. Blanks, 310 F.3d at 402 (holding that statement that employee could not perform a specific job was insufficient to show the employer regarded the employee as disabled). The Court finds that Plaintiff had failed to produce any evidence that anyone at Beall treated Mr. Gentry as having a disability.
Because the Court finds that Plaintiff has failed to show that Mr. Gentry either had a disability, a record of a disability, or was regarded as having a disability, there is no need for the Court to consider whether Defendant denied Mr. Gentry a reasonable accommodation. See Foreman, 117 F.3d at 805 (“If Foreman is not disabled, he would not be entitled to a reasonable accommodation, nor would his qualification for the position sought be relevant.”). Accordingly, Defendant’s motion for partial summary judgment with regard to Plaintiff’s reasonable accommodation claim under the ADA is hereby GRANTED.
B. Beall’s Leave Policy Plaintiff has also pleaded a violation of the ADA based on allegations that Defendant’s adherence to its twelve month leave policy does not provide a reasonable accommodation to persons who are disabled. (Am. Compl. at 3, ¶8). Defendant moves for summary judgment on this claim on the grounds that its twelve month leave policy, which is applied equally to all employees, does not violate the ADA because it provides a reasonable accommodation even though a twelve month leave is not statutorily mandated. (Def’s Br. at 15). Plaintiff responds that Defendant’s finite leave policy violates the ADA because it fails to provide for a reasonable accommodation beyond the twelve-month period. (Plaintiff’s Br. at 22). Plaintiff specifically argues that Defendant applied its finite leave policy to terminate Mr. Gentry without considering his request for a reasonable accommodation. (Plaintiff’s Br. at 24).
12

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 13 of 14
Plaintiff’s argument is unavailing because having found that Mr. Gentry did not have a disability as defined in the ADA, he is not entitled to a reasonable accommodation. Foreman, 117 F.3d at 805. Notwithstanding, while the Fifth Circuit has not reviewed this exact issue, the Court finds a decision from the Sixth Circuit persuasive. See Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042 (6th Cir. 1998). In Gantt, the Circuit Court found that a leave policy, which is uniformly and consistently applied to all employees, does not violate the ADA as a matter of law. Id. at 1046. Plaintiff has failed to come forward with any evidence to show that Defendant’s leave policy was not uniformly and consistently applied. Accordingly, Plaintiff’s claim fails and Defendant is entitled to summary judgment.
IV. CONCLUSION In sum, Plaintiff has not come forward with sufficient evidence to defeat Defendant’s motion for summary judgment. There are no genuine issues of material fact because Plaintiff failed to show that Mr. Gentry has a disability recognized under the ADA, that he has a record of such impairment, or that he was regarded as disabled in violation of the ADA. Further, there are no genuine issues of material fact as to Defendant’s twelve month leave policy. Accordingly, Defendant’s Motion for Partial Summary Judgment on Plaintiff’s Claims under the Americans with Disabilities Act (Doc. # 22) is GRANTED. Plaintiff’s claims under the ADEA remain pending and will proceed to trial on April 7, 2008.
13

Case 3:06-cv-01779 Document 30 Filed 03/15/2008 Page 14 of 14 SO ORDERED on this 15th day of March, 2008.
_____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE
14

 
 Case 3:06-cv-01779 Document 46 Filed 04/03/2008 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
BEALL CONCRETE ENTERPRISES INC., a wholly owned subsidiary of U.S. Concrete, Inc.,
Defendant.

§ § § § § CIVIL ACTION NO. 3:06-CV-1779-O § § § § §

ORDER

The Court has been notified that this case has settled. The parties are therefore directed to

file the necessary dismissal papers (a stipulation of dismissal under FED. R. CIV. P. 41(a)(1)(A)(ii))

with the Clerk’s Office within 15 days from the date of this order.

If a stipulation of dismissal is not filed within 15 days from the date of this order and further

proceedings become necessary or desirable, the parties’ should immediately file a Joint Status

Report with this Court.

SO ORDERED on this 3rd day of April, 2008.

_____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUALE~LOYMENTOPPORTUNITY

}

COMMISSION,

}

}

Plaintiff,

}

}

v.

}

} BEALL CONCRETE ENTERPRISES, LID., }

d/b/a Redi-Mix and Redi-Mix Concrete,

}

a wholly owned subsidiary of U.S. CONCRETE }

INC.,

}

}

}

Defendant.

}

}

CIVIL ACTION NO.
0
3:06--CV-1779-"

CONSENT DECREE

This Consent Decree is made and entered into between the Plaintiff, the Equal

Employment Opportunity Commission ("EEOC"), and the Defendant, Beall Concrete

Enterprises, Ltd., d/b/a Redi-Mix and Redi-Mix Concrete, a wholly owned subsidiary ofU.S.

Concrete, Inc. (hereinafter collectively referred to as "the parties").

On September 28. 2006, the Equal Employment Opportunity Commission instituted a

lawsuit in the United States District Court for the Northern District of Texas, Dallas Division,

Civil Action Number 3:06-CV-1779-M against Defendant, alleging that the Defendant violated

the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, when it terminated

Charging Party Charles Gentry from his employment because of his age (63) and failed or
refused to rehire him on this basis.

The parties hereto desire to compromise and settle the differences embodied in the

aforementioned lawsuit, and intend that the terms and conditions be set forth in this Consent Decree.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the sufficiency of which is hereby acknowledged, the parties agree as follows, the court [mds appropriate, and therefore, it is ORDERED, ADnJDGED AND DECREED that:
1. This Court has jurisdiction to enforce the provisions set forth in this Consent Decree.
2. This Consent Decree resolves all issues, including all like and related issues, raised in EEOC Charge Number 310-2005-02671. This Decree further resolves all issues in the Complaint filed by the Commission in this civil action, including its ADA claims. As part ofthe Agreement and to resolve this case, the EEOC agrees not to appeal the summary judgment ruling on its ADA claims. The Commission does not waive processing or litigating charges or cases other than the above referenced charges and Complaint. It is understood that this Consent Decree does not constitute an admission by Defendant of any violation of the Age Discrimination in Employment Act of 1967, as amended.
3. Defendant agrees not to discriminate on the basis of age with respect to recruitment, hiring, transfer, termination, or any other employment action, and Defendant further agrees not to retaliate in any way against any person because of opposition to any practice declared unlawful under the ADEA or because ofthe filing of a charge, giving testimony, or assisting or participating in any manner in
2

any investigation, proceeding or hearing. 4. Defendant agrees to post the Notice appended hereto as Attachment ·'A" on the
employee bulletin board on all floors of its facility located in Euless, Texas, within 10 days after the entry ofthis Consent Decree. Defendant will report to the EEOC that it has complied with this requirement within 30 days after posting the notice. S. For each year that this Consent Decree is in effect, Defendant agrees to conduct annual training for all mana&ers and supervisors of Defendant's Euless Texas, facility, advising them ofthe requirements and prohibitions ofthe ADEA. The training will inform the employees of the complaint procedure for individuals who believe that they are being discriminated against by Defendant. This annual training will also advise managers, and supervisors ofthe consequences imposed upon Defendant for violating the ADEA. The training will also include a specific discussion or instruction relating to the issue ofage discrimination, and Defendant's policies regarding the reporting requirements regarding complaints of age discrimination and the appropriate investigation ofage discrimination claims. The training shall be at least one (1) hour in duration. No less than 10 days before the training is conducted, Defendant agrees to give written notice to the EEOC as to the date and location ofthe training, the name and qualifications of the person providing the training and the substance ofthe training. All materials used in conjunction with the training shall be forwarded to the EEOC. Within 20
3

days following the training, Defendant shall submit to the EEOC confinnation

that the training was conducted, and a list ofattendees.

6. Defendant agrees to pay Charles Gentry the gross sum of $50,000.00 in full and

[mal settlement ofthe claims asserted in this dispute. This $50,000.00 represents

backpay under the ADEA for the claim asserted by the EEOC on behalf of

Charging Party Charles Gentry. Payment shall be made in the fonn of cashier's

check and made payable to Charles Gentry. The cashier's check shall be mailed

within 10 days after entry of this Consent Decree to: Devika Seth, Senior Trial

Attorney, 207 S. Houston Street, 3rd Floor, Dallas, Texas 75202.

7.

If Defendant fails to tender payment or otherwise fails to timely comply with

the terms ofparagraph 6 above, Defendant shall pay interest at the rate for

post-judgment pursuant to applicable law on any untimely or unpaid amounts.

8.

The parties agree to bear their own costs associated with this action, including

attorney's fees.

9.

The Commission has the right to specifically enforce the terms ofthis Decree.

Nothing in this Consent Decree can preclude further actions by the EEOC or any

other person to remedy any other alleged violations ofthe ADEA by Defendant.

10.

The effective date ofthis Decree shall be the date upon which it is signed for

approval by the Court.

11.

The term ofthis Decree shall be for two (2) years from the effective date. The

Court shall retain jurisdiction to enforce the terms ofthis Decree until the

4

expiration of the term ofthe Consent Decree. 5

APPROVED AS TO FORM AND CONTENT:
FOR THE PLAINTIFF:
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

FOR THE DEFENDANT:

BEALL CONCRETE ENTERPRISES,

LTD., D/B/A REDI-MIX AND REDI-MIX

CONC TE, A WHOLLY OWNED

SUB

OF U.S. CONCRETE, INC.

Oklahoma State Bar No. 011782
207 South Houston Street, 3rd Floor Dallas, Texas 75202 Telephone: (214) 253-2750 Facsimile: (214) 253-2749

. LEVINE tate Bar No. 00791102
4747 Bellaire, Suite 500 Bellaire, Texas 77401 Telephone: (713) 574-4560 Facsimile: (713)660-8637

rlJ S: O ORDERED, ADnJDGED AND DECREED this Jr day of_,~+'-+I-_-" 2008.

I
I
i
I
6

· ,
NOTICE
1. Federal Law requires that there be no discrimination against or harassment of any employee or applicant for employment because ofthat person's age, race, color, religion, sex, national origin, or disability with respect to hiring, compensation, promotion, discharge or other terms, conditions or privileges of employment.
2. Redi-Mix Concrete strongly supports and will comply with such Federal Law in all
aspects and it will not take any action against employees because they have exercised , their rights under the law. 3. Employees may report violations ofthe company's EEO policy to General Manager Scott
Evans at (817) 835-4100, Patti Reardon at (817) 835-4096, or Peter Baczynski at (817) 835-4024.
General Manager, Redi-Mix
Attachment "A"

 
 Case: 3:06-cv-1779 As of: 11/10/2016 08:17 AM CST 1 of 5
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:06−cv−01779−O

CLOSED,JURY

Equal Employment Opportunity Commission v. Beall Concrete Enterprises Inc Assigned to: Judge Reed C O'Connor Cause: 28:451 Employment Discrimination
Plaintiff

Date Filed: 09/28/2006 Date Terminated: 04/22/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Employment Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Robert A Canino , Jr Equal Employment Opportunity Commission Dallas District Office 207 S Houston St 3rd Floor Dallas, TX 75202 214/253−2750 Fax: 214/253−2749 Email: robert.canino@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Devika Rani Seth Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253−2764 Fax: 214/253−2749 FAX Email: devika.seth@eeoc.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Gwendolyn Young Reams Equal Employment Opportunity Commission 207 S Houston St 3rd Floor Dallas, TX 75202 214/253−2760 Bar Status: Not Admitted

James L Lee Equal Employment Opportunity Commission 207 S Houston St 3rd Floor Dallas, TX 75202 214/253−2760 Bar Status: Not Admitted

Ronald S Cooper Equal Employment Opportunity Commission 207 S Houston St 3rd Floor Dallas, TX 75202

Case: 3:06-cv-1779 As of: 11/10/2016 08:17 AM CST 2 of 5
214/253−2760 Bar Status: Not Admitted
Toby W Costas Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253−2760 Fax: 214/253−2749 FAX Email: toby.costas@eeoc.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

V.
Defendant
Beall Concrete Enterprises Inc a wholly owned susidiary of US Concrete Inc

represented by Mark J Levine Levine &Associates 4747 Bellaire Suite 500 Bellaire, TX 77401 713/574−4550 Fax: 713/660−8637 Email: levine@employ−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Date Filed 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 09/28/2006 11/14/2006 11/14/2006 01/04/2007 01/16/2007

# Docket Text
1 COMPLAINT against Beall Concrete Enterprises Inc filed by Equal Employment Opportunity Commission. (axm, ) (Entered: 09/28/2006)
DEMAND for Trial by Jury by Equal Employment Opportunity Commission. (contained within complaint) (axm, ) (Entered: 09/28/2006)
2 Summons Issued as to Beall Concrete Enterprises Inc. (ISS−1) (axm, ) (Entered: 09/28/2006)
3 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Equal Employment Opportunity Commission. (axm, ) (Entered: 09/28/2006)
***Magistrate Judge Ramirez chosen by random selection to handle matters that may be referred in this case. (axm, ) (Entered: 09/28/2006)
4 Order Designating Case for ECF − see order for specifics. (Signed by Judge Barbara M. G. Lynn on 09/28/2006) (axm, ) (Entered: 09/28/2006)
5 NOTICE of Waiver of Service by Beall Concrete Enterprises Inc (jyg, ) (Entered: 11/15/2006)
6 WAIVER OF SERVICE Returned Executed as to Beall Concrete Enterprises Inc. Waiver sent on 10/13/2006, answer due 12/12/2006. (jyg, ) (Entered: 11/15/2006)
7 ANSWER to Complaint by Beall Concrete Enterprises Inc (Levine, Mark) (Entered: 01/04/2007)
8 Order Requring Scheduling Conference and Report for Content for Scheduling Order Proposal due by 2/28/2007. See order for details. (Signed by Judge Barbara M. G. Lynn on January 16, 2007) (Attachments: # 1 consent letter# 2 Consent Form) (jyg) (Entered: 01/16/2007)

Case: 3:06-cv-1779 As of: 11/10/2016 08:17 AM CST 3 of 5

02/23/2007 04/16/2007
04/17/2007
05/07/2007 05/31/2007 06/12/2007 09/12/2007 09/14/2007 09/27/2007 10/01/2007 10/19/2007 10/23/2007 10/31/2007 11/14/2007 12/06/2007

9 STATUS REPORT JOINT by Equal Employment Opportunity Commission. (Costas, Toby) (Entered: 02/23/2007)
10 SCHEDULING ORDER: Amended Pleadings due by 5/16/2007. Discovery due by 10/15/2007. Pretrial Conference set for 4/4/2008 10:00 AM before Judge Barbara M. G. Lynn. Joinder of Parties due by 5/16/2007. This case is set for jury trial on this Court's three−week docket beginning 4/8/2008 at 09:00 AM before Judge Barbara M. G. Lynn. Motions due by 11/1/2007. Proposed Pretrial Order due by 3/17/2008. Pretrial Materials due by 3/17/2008. Settlement Report due by 10/31/2007. See order for other deadlines. (Signed by Judge Barbara M. G. Lynn on April 16, 2007) (jyg) Modified on 4/23/2007 (Gardner, Jo). (Entered: 04/16/2007)
11 ORDER Confirming Trial Date: The Court's April 16, 2007 Scheduling Order is hereby AMENDED to reflect that this case is currently set for a jury trial on this Court's three−week docket call beginning April 7, 2008, at 9:00 a.m., not April 8, 2008. All other deadlines set out in the Court's Scheduling Order remain in effect. (Signed by Judge Barbara M. G. Lynn on April 17, 2007) (jyg) (Entered: 04/17/2007)
12 AMENDED COMPLAINT against Beall Concrete Enterprises Inc filed by Equal Employment Opportunity Commission. (Attachments: # 1 Appendix Beal Second Amend Redlined) (Costas, Toby) (Entered: 05/07/2007)
13 Designation of Experts by Equal Employment Opportunity Commission. (Costas, Toby) (Entered: 05/31/2007)
14 NOTICE of Attorney Appearance by Devika Seth on behalf of Equal Employment Opportunity Commission (Seth, Devika) (Entered: 06/12/2007)
15 Unopposed MOTION for Leave to File First Amended Answer by Beall Concrete Enterprises Inc (Attachments: # 1 Exhibit A) (Levine, Mark) Modified on 9/13/2007 (npk) (Entered: 09/12/2007)
16 UNOPPOSED MOTION for Leave to File Amended Answer by Beall Concrete Enterprises Inc (Attachments: # 1 Exhibit A) (Levine, Mark) Modified on 9/14/2007 (npk) (Entered: 09/14/2007)
17 ORDER granting 15 , 16 Unopposed Motions for Leave to File First Amended Answer to Complaint. Amended Answer due 10/1/07. (Signed by Judge Barbara M. G. Lynn on 9/27/07) (npk) (Entered: 09/28/2007)
18 AMENDED ANSWER by Beall Concrete Enterprises Inc re 12 Amended Complaint (Levine, Mark) (Entered: 10/01/2007)
19 Unopposed Motion to Extend Dispositive Motion Deadline by Beall Concrete Enterprises Inc. (Levine, Mark) Modified on 10/22/2007 (klm). (Entered: 10/19/2007)
20 ORDER granting 19 Unopposed Motion for Extension of Time to File Dispositive Motion Deadline. Motion for Summary Judgment due by 11/15/2007. Responses due by 12/14/2007. (Signed by Judge Barbara M. G. Lynn on October 23, 2007) (jyg) (Entered: 10/23/2007)
21 STATUS REPORT JOINT SETTLEMENT STATUS REPORT by Equal Employment Opportunity Commission, Beall Concrete Enterprises Inc. (Seth, Devika) (Entered: 10/31/2007)
22 MOTION for Partial Summary Judgment on Plaintiff's Claims Under the Americans with Disabilities Act by Beall Concrete Enterprises Inc with Brief/Memorandum in Support. (Attachments: # 1 Supplement Brief in Support) (Levine, Mark) Modified on 11/14/2007 (lmp). (Entered: 11/14/2007)
23 NOTICE of Change of Address by Mark J Levine, counsel for Beall Concrete Enterprises Inc. New address is: 4747 Bellaire, Suite 500, Bellaire, Texas 77401, Telephone: (713) 574−4550, Facsimile: (713) 660−8637 (Levine, Mark) (Entered: 12/06/2007)

Case: 3:06-cv-1779 As of: 11/10/2016 08:17 AM CST 4 of 5

12/14/2007 12/14/2007
12/17/2007 12/18/2007 12/18/2007 03/06/2008 03/15/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/18/2008 03/24/2008

24 RESPONSE/Brief in Opposition filed by Equal Employment Opportunity Commission re 22 for Partial Summary Judgment. (Seth, Devika) Modified on 12/18/2007 (lmp). (Entered: 12/14/2007)
25 Appendix in Support filed by Equal Employment Opportunity Commission 24 RESPONSE/Brief in Opposition filed by Equal Employment Opportunity Commission re 22 for Partial Summary Judgment.(Attachments: # 1 Appendix Declaration of Charles Gentry# 2 Appendix Affidavit of Charles Gentry# 3 Appendix TWC Report Charles Gentry# 4 Affidavit TWC Report Charles Gentry# 5 Appendix Defendat's Employee Handbook Hourly Employees# 6 Appendix Defendant's Employee Handbook Hourly Employees# 7 Appendix Defendant's Supplemental Statement Position &Employee Status Form# 8 Appendix Defendant's Objections and Answers to Plaintiff First Set Interrogatories# 9 Appendix Excerpts Depo Charles Gentry# 10 Appendix Excerpts Depo 102−116# 11 Appendix DepoExcerpts Patti Reardon 117−131# 12 Appendix Depo Excerpts Patti Reardon 132−145# 13 Appendix Excerpts Depo Patti Reardon 146−160 &Affidavit of Devika Seth) (Seth, Devika) Modified on 12/18/2007 (lmp). (Entered: 12/14/2007)
28 SPECIAL ORDER NO. 3−270. Case reassigned to Judge Reed C O'Connor for all further proceedings. Judge Barbara M. G. Lynn no longer assigned to case. (see order for specifics) (Signed by Judge Sidney A Fitzwater on 12/17/07) (lmp) (Entered: 12/19/2007)
26 Amended Brief/Memorandum in Support filed by Beall Concrete Enterprises Inc re 22 MOTION for Partial Summary Judgment on Plaintiff's Claims Under the Americans with Disabilities Act. (Levine, Mark) Modified on 12/20/2007 (lmp). (Entered: 12/18/2007)
27 Appendix in Support filed by Beall Concrete Enterprises Inc re 26 Amended Brief/Memorandum in Support 22 MOTION for Partial Summary Judgment on Plaintiff's Claims Under the Americans with Disabilities Act. (Levine, Mark) Modified on 12/20/2007 (lmp). (Entered: 12/18/2007)
29 TRIAL SCHEDULING ORDER: Pretrial Order due by 3/17/2008. Jury Trial set for 4/7/2008 09:30 AM before Judge Reed C O'Connor. See order for other specifics. (Signed by Judge Reed C O'Connor on 3/6/08) (jrb) (Entered: 03/07/2008)
30 Memorandum Opinion and Order granting 22 Motion for Summary Judgment, filed by Beall Concrete Enterprises Inc. (See Order for specifics) (Signed by Judge Reed C O'Connor on 3/15/08) (skt) (Entered: 03/17/2008)
31 Witness List by Equal Employment Opportunity Commission. (Seth, Devika) (Entered: 03/17/2008)
32 Exhibit List by Equal Employment Opportunity Commission. (Seth, Devika) (Entered: 03/17/2008)
33 Designation of Deposition by Equal Employment Opportunity Commission. (Seth, Devika) (Entered: 03/17/2008)
34 ORDER SETTING PRETRIAL STATUS HEARING: Status Hearing set for 3/25/2008 10:30 AM before Judge Reed C O'Connor. (see order for specifics) (Signed by Judge Reed C O'Connor on 3/17/2008) (axm) (Entered: 03/17/2008)
35 Exhibit List by Beall Concrete Enterprises Inc. (Levine, Mark) (Entered: 03/17/2008)
36 Witness List by Beall Concrete Enterprises Inc. (Levine, Mark) (Entered: 03/17/2008)
37 Exhibit List Amended by Equal Employment Opportunity Commission. (Seth, Devika) (Entered: 03/18/2008)
38 Agreed Proposed Jury Instructions by Equal Employment Opportunity Commission, Beall Concrete Enterprises Inc. (Seth, Devika) Modified on 3/25/2008 (tln). (Entered: 03/24/2008)

Case: 3:06-cv-1779 As of: 11/10/2016 08:17 AM CST 5 of 5

03/24/2008 03/24/2008 03/24/2008 03/24/2008 03/25/2008 03/26/2008
03/27/2008
04/03/2008
04/03/2008
04/22/2008

39 Proposed Voir Dire by Equal Employment Opportunity Commission. (Seth, Devika) (Entered: 03/24/2008)
40 Proposed Voir Dire by Beall Concrete Enterprises Inc. (Levine, Mark) (Entered: 03/24/2008)
41 Defendant's Rule 26(a)(3) Disclosure Objections by Beall Concrete Enterprises Inc. (Levine, Mark) Modified on 3/25/2008 (tln). (Entered: 03/24/2008)
42 AMENDED DOCUMENT by Beall Concrete Enterprises Inc. Amendment to 41 Defendant's Rule 26(a)(3) Disclosure Objections. (Levine, Mark) Modified on 3/25/2008 (tln). (Entered: 03/24/2008)
43 Minute Entry for proceedings held before Judge Reed C O'Connor: Pretrial Conference held on 3/25/2008. Attorney Appearances: Plaintiff − Devika Seth, Toby W. Costas; Defense − Mark J. Levine. (Court Reporter Debbie Saenz.) Time in Court: 65 mins. (skt) (Entered: 03/26/2008)
44 ORDER: The Court determines that this case should be REFERRED to U.S. Magistrate Judge Irma Carrillo Ramirez for a court−ordered settlement conference to be conducted on April 3, 2008 at 9:00 a.m.. All counsel are directed to contact the chambers of Magistrate Judge Ramirez at 214−753− 2393 no later than 5:00 p.m. March 28, 2008 to arrange all the details of the conference. The parties, as well as counsel, shall attend the settlement conference. (Signed by Judge Reed C O'Connor on 03/26/08) (lmp) (Entered: 03/27/2008)
45 ORDER: Pursuant to the District Court's Order, filed March 26, 2008, this matter has been referred to the United States Magistrate Judge for a settlement conference. This Order will control all proceedings relating to the settlement conference in this case. Settlement Conference set for 4/3/2008 09:00 AM before Magistrate Judge Irma C Ramirez. (see order for specifics) (Signed by Magistrate Judge Irma C Ramirez on 03/27/08) (lmp) (Entered: 03/27/2008)
Minute Entry for proceedings held before Magistrate Judge Irma C Ramirez: Settlement Conference held on 4/3/2008. Parties settled. Attorney Appearances: Plaintiff − Devika Seth, Toby Costas; Defense − Mark Levine, Curt Lindeman. (Not recorded) Time in Court: 3 hours. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (lmm) (Entered: 04/03/2008)
46 ORDER: The Court has been notified that this case has settled. The parties are therefore directed to file the necessary dismissal papers (a stipulation of dismissal under FED. R. CIV. P. 41(a)(1)(A)(ii)) with the Clerk's Office within 15 days from the date of this order. (see order for specifics) (Signed by Judge Reed C O'Connor on 4/3/08) (klm) (Entered: 04/04/2008)
47 Consent Decree. (See Order for specifics) (Signed by Judge Reed C O'Connor on 4/22/08) (skt) (Entered: 04/23/2008)