Case 7:05-cv-02552-LSC

Document 1

Filed 12/16/2005

Page 1 of 6

FILED
2005 Dec-19 AM 11:59 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRJCT COURT FOR THE NORTHERt'l,' DISTRICT OF ALABAMA
WESTERt" DlVISIOl'i

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, vs. BARLOWORlD HAI\'OLING LP
Defendant ,

1 1 1 1 CIVIL ACTION # 1 1 1 1 1 1 1

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964, Title I of the Civil

Rights Act of 1991 and the Age Discrimination in Employment Act to correct unlawful

employment practices on the basis of race and age and to provide appropriate relief to William

Winn who was adversely afTe<:ted by such practices, As alleged with greater particularity in

paragraph 8 below. the Defendant Employer discriminated against William Winn on the basis of

his race and age by discharging him.

JURISDICTION AND VENUE

L Jumdiction of this Court is invoked pursuant to 28 U.S ,c. §§ 451,1331,1337,

1343 and 1345. Th is action is authorized and instituted pursuant to Se<::tions 706(0(1) and (3) of

Title VII of the Civil Rights Act of 1964. as amended, 42 USc. § 20Cl0e-S(f)(I) and (3) (~Tille

VII"), Scction 102 of the Civil RightS Act of 1991, 42 U.S.c. § 1981a and Section 7(b) of the

Age Discrimination in Emplo)'TTlen\ Act of 1967, as amended. 29 U,S.c. § 626(b) (the "ADEA").

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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 §§ 216(c) and 217.
2. The employment practices alleged to be "nlawful were commined within the jurisdiction of the United States District Court for the Northern District of Alabama Western Division.
PARTIES 3. Plamtiff, 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)(l) and (3) of Title VII. 42 U.S.C. § 2000e· S(f)(J) and (3) and is the agency of the United States of America charged with the administration. imelllretation and enforcement of the ADEA and ]s expressly authorized to bring this action by Section 7(b) of the ADEA. 29 USC § 626(b), as amended by Section 2 of Reorganization Plan No.1 of 1978. 92 Stat. 3781, and by Public Law 98-532 (\984), 98 Stat. 2705 .. 4. At all relevant times, Defendant, Barloworld Handling LP (the "Employer"), has continuously been a Delaware corporation doing business in the State of Alabama and the City of Tuscaloosa, and has continuously had at least 20 employees , 5. At all relevant times, Defendant Emp loyer has continuously been an employer engaged in an mdustry affecting commerce within the meamng of Sections 701(b), (g) and (h) of Title VII, 42 U.S ,C. §§ 2000e(b}, (g) and (h) and Sections ll(b), (g) and (h) of the ADEA. 29 U.S.C §§ 630(b}, (g) and (h).

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CONCILIATION 6. Prior to insti tution of this lawsuit. the Commission's representatives allempted to eliminate the unlawful employment practices alleged below and to effect voluntary compliance with the ADEA and Title VII through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S ,c. § 626{b) and Section 706(b) of Title VII. 42 U.S.c. § 2000 e-S (b).
$TATEYIENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, William Winn filed a charge with the Conunission alleging vio lations of Title VII by Defendant Employer. All conditions precedent 10 the institution of this lawsuit have been fulfilled , 8. On or about February 28, 2003 Defendant Employer engaged in unlawful employment practices at its Tuscaloosa, Alabama faci lity, in violation of Section 703(a)(I) of Tit le VII, 42 USC. § 2000e-2(a)(1) and Section 4 (a) I of the ADEA. 29 U.s.c. § 623 (a) I. The practices include discharging William Winn because of his race, Black and his age, 62. In particular. William Winn, a Black male over the age of 40 was employed by Defendant Employer as a lift truck road service technician at Defendant Employer's Tuscaloosa. Alabama location. Mr. Winn was quali fied for the position that he held and was performing successfully when he was discharged by Defendant Employer while lesser qualified younger White males who were not perfonning as successfully as Me Winn were not discharged. 9. The effect of the practices complained of in paragraph 8 above has been to deprive William Winn of equal cmplo)'TIlem opportunities and otherwise adversely affect his status as an employee because of his race and age ,

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10. The unlawful employment practices complained of in paragraph 8 above were intentional.
I L The unlawful emplo}ment practices complained of in paragraph 8 above were donc with malice or with reckless indifference to the federally protected righlS of William Winn.
12. The unlawful cmplo}ment practices complained of in paragraph 8 above were willful within the meaning of Section 7(b) of the ADEA, 29 V.S .c. § 626(b).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Coun: A. Grant a permanent injunction enjoining Defendant Employer. its officers, successors, assigns, and all persons in active concen or panicipation with it. from engaging in any emplo}TIlent practice which discriminates on the basis of race and from engaging in discharge of employees and any other employment practice which discriminates on the bas is of age against individuals 40 years of age and older. S. Order Defen dant Employer to institute and carry out policies, practices, and programs which provide equal emp loyment opponunities for Black Americans and for individuals 40 years of age and older. and which eradicate the effects of its past and present unlawful emplo}TIlent practices. C. Order Defendant Emp loyer to make whole Willi am Winn by providing appropriate backpay, an equal sum as liquidated damages, with prejudgment interest, In amounts to be dctermined at trial, and other affinnativc relief necessary to eradicate the effects of its unlawful cmplo}TIlent practices. including but not limited to reinstatement of William Winn with restoration of all benefits as ifhe had not been discharged

Case 7:05-cv-02552-LSC Document 1 Filed 12/16/2005 Page 5 of 6
D. Order Defendant Employer to mak~ whole William Winn by providing compensation for past and future pecuniary losses r~sulting from the unlawful employment practices described In paragraph 8 abo'"e in amounts to be detennined at trial.
E. Order Defendant Employer to make whole William Winn by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 8 above, including emotional pain, suffering, inconvenience, loss of enjoyment oflife, and humiliation, in amounts to be detennined at trial.
F. Order Defendant Employer to pay William Wi.llll punitive damages for its malicious and reckless conduct described in paragraph 8 above, in amounts to be detemlined 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 DEMA",'D
The Commission !"e<luests ajury tnal on all questions of fact raised by its complaint.
Respectfully submitted, JAMES L. LEE Deputy General Counsel GWE}\,'DOL YN YOU1\' G REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY CO:-"1MISSION 1801 "L" Street, Northwest Washington. DC 20507

Case 7:05-cv-02552-LSC Document 1 Filed 12/16/2005 Page 6 of 6
\
'/J,'( ~ fl~
JACQIIl'-UNE H. MCNAIR (PA 42332) Acting'Regional Anomey
SupcrvisoryTrial Anomey
1.MARK GRAHAM (LA 06216) Senior Trial Anomey EQUAL EMPLOYMENT OPPORTUNITY CO:-'1MISSION Birmingham District Office Ridge Park Place, Suite 2000 1130 22nd Stm:t South Birmingham, AL 35205 Telephone: (20S) 212-2054 Fax: (205) 212-2041 E·mail: john.graham@eeoc.go\'

 
 Case 7:05-cv-02552-LSC

Document 16-2

Filed 06/28/2006

Page 1 of 9

FILED

2006 Jun-28 PM 03:20 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

BARLOWORLD HANDLING, L.P.,

)

)

Defendant.

)

___________________________________)

Civil Action Number: 7:05-CV-2552-LSC
CONSENT DECREE

I. GENERAL PROV1SIONS

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII) guarantees protected workers that they will be free from employment discrimination on the basis of race, color, religion, sex, or national origin. The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et. seq. ("ADEA") guarantees protected workers that they will be free from employment discrimination on the basis of age. William Winn filed a charge of discrimination alleging that Barloworld Handling, L.P. discriminated against him in violation of Title VII because of his race (black) and that Barloworld Handling, L.P. discriminated against him in violation of the ADEA because of his age (62) on February 23, 2003. On December 16, 2005, the EEOC filed suit in this Court against Barloworld

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Handling, L.P. The EEOC alleged that Barloworld Handling, L.P. discriminated against William Winn by discharging him because of his race, Black and his age, 62. Barloworld Handling, L.P. expressly denies all claims and allegations asserted in the Complaint.
The EEOC and Barloworld Handling, L.P. being aware of the risks, uncertainties and costs of continued litigation, are now desirous of resolving, through this Consent Decree, the claims asserted in the above styled lawsuit.
II. SPECIFIC PROVISIONS A. This Court has full jurisdiction to decide this controversy as to the EEOC and Barloworld Handling, L.P. The Court has not made any finding that Barloworld Handling, L.P. has engaged in the conduct claimed or has unlawfully discriminated against William Winn in any way. This Court expressly retains jurisdiction for the next 24 months for the purpose of ensuring compliance with this Decree and entry of such further orders as may be necessary to effectuate the purposes of this Decree. Twenty-four (24) months after the entry of this Decree, it will expire without further action by the parties or the Court. It is expressly agreed by the parties that the Court shall retain jurisdiction to enforce this Consent Decree. B. Nothing herein shall be deemed to be an admission by Barloworld Handling, L.P. that it has at any time, place or in any manner whatsoever, violated
2

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either Title VII, the ADEA or any other statute, rule of law or legally binding regulation concerning William Winn.
C. This Decree, being entered based on the consent of the EEOC and Barloworld Handling, L.P., shall not constitute an adjudication or finding on the merits of the case, nor shall it be used as evidence of a violation of Title VII or other law in any subsequent action by EEOC against Barloworld Handling, L.P., except no party shall be prohibited by this provision from proceeding against any other for noncompliance with any provision of this Decree or any release pursuant to this Decree.
D. This Decree shall fully and finally resolve with prejudice all claims asserted by the Commission in the Complaint, including without limitation the matters alleged in the Charge of Discrimination numbered 130-2003-01918. In addition to this Decree, a separate agreement will be executed between William Winn and Barloworld Handling, L.P. The execution of that release by William Winn is a condition precedent to payment by Barloworld as set forth hereinafter in paragraph E.
E. Barloworld Handling, L.P. agrees to pay a total of $70,000.00 in full settlement of the claims which are the subject of this lawsuit and Consent Decree. A check in that amount, will be mailed to William Winn by Certified mail within
3

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twenty (20) days after the Court approves this Consent Decree, provided that William Winn has provided to Barloworld any separate release agreed to by he and Barloworld. Copies of the check and the letter sending payment will be mailed to J. Mark Graham, Senior Trial Attorney, EEOC, 1130 22nd Street, South, Suite 2000 Birmingham, AL 35205.
F. Barloworld Handling, L.P. agrees that it will not retaliate against William Winn or any of its former or present employees because such person has filed a Charge of Discrimination, testified, assisted, benefited, or participated in any manner in the investigations, proceedings or hearings in this lawsuit.
G. Barloworld Handling, L.P. represents that it has at all times complied with the requirements of Title VII of the Civil Rights Act of 1964, as amended, and with the Age Discrimination in Employment Act of 1967, as amended. As part of this resolution, Barloworld Handling commits to ensure continued compliance with these laws. To assist in this effort, Barloworld Handling, L.P. will immediately post the notice to employees attached as Exhibit "A" in an area of its facility frequented by all employees on a regular basis. The notice will be posted for a period of ninety (90) days.
H. Within sixty (60) days of the entry of this Decree, Barloworld Handling, LP will provide training for the employees at its Tuscaloosa, Alabama locations as
4

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follows: 1. Barloworld Handling, LP shall provide at least one hour of classroom or other effective interactive training and education regarding discrimination, including racial and age discrimination, to all employees who are employed as of the date of entry of this Consent Decree and to all new employees within three (3) months of their initial employment or rehire. Barloworld Handling, LP shall provide on an annual basis at least one hour of classroom or other effective interactive training and education regarding discrimination, including racial and age discrimination to all employees for the duration of this Consent Decree. 2. The training and education required by this Consent Decree shall include information and practical guidance regarding the federal statutory provisions concerning the prohibition against and the prevention and correction of discrimination, including racial and age discrimination. At a minimum, the training shall explain: (1) what constitutes age discrimination and race discrimination; (2) that Title VII prohibits this misconduct; (3) that employees may complain to management if they feel they have been discriminated against; (4) that the evaluation of managers will consider, among other things, enforcement of Barloworld's anti-discrimination policies. This training will 5

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include an explanation of Barloworld's policies regarding race discrimination and age discrimination. Pursuant to this Decree, Barloworld will also conduct this specific training on at least two (2) more occasions; the second session will be in months 10-12 of the Decree and the third session will be in month 22-24 of the Decree. 3. The training and education for employees may be videotaped for review by absent employees and shall also include practical examples aimed at the prevention of workplace harassment, discrimination, and retaliation. The training shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation and may be presented by Barloworld Human Resources Professionals with such knowledge and expertise. 4. Employees attending the training shall be instructed to sign a registry when they attend the training session or watch a videotape of the training session. Defendant shall keep, for the duration of the Decree, this written record of all employees who attend the training session or watch it on videotape. 5. Barloworld Handling, L.P. may add to this training depending on its needs. The EEOC shall be given at least 15 days advance notice of the date, time,
6

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location and substance of the initial training and shall be permitted to attend and observe the planned training upon giving reasonable notice to Barloworld.
I. Within ninety (90) days of the entry of this Consent Decree, Barloworld Handling, L.P. will provide the Birmingham District Office of the Equal Employment Opportunity Commission with proof of the action taken to inform and train its personnel as outlined in paragraph H above and thereafter will supplement the report to include any additional training that occurs for the duration of this Consent Decree. The report(s) will be mailed to Regional Attorney, Birmingham District Office of the Equal Employment Opportunity Commission (EEOC), 1130 22nd Street, South, Suite 2000 Birmingham, AL 35205.
J. Barloworld Handling, L.P. maintains an anti-discrimination policy and complaint procedure. A copy of that policy and procedure will be posted in the same locations as the notices referred to in paragraph G above. Additionally, an individual copy of the policy and procedure will be made available to all employees.
K. Each party shall bear their own attorney's fees and costs. The EEOC is not seeking attorney's fees or costs against Barloworld Handling, L.P. Barloworld Handling, L.P. will not seek attorney fees or costs against the EEOC.
L. The parties agree that upon entry of this Decree, they will sign a joint Motion to Dismiss this action, with prejudice subject to this Decree.
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ORDERED and ADJUDGED this _____day of_____________, 2006. ________________________________ UNITED STATES DISTRICT JUDGE
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Exhibit "A" NOTICE TO EMPLOYEES Federal law requires that there be no discrimination against any employee or applicant for employment because of the individual's race, color, religion, sex, national origin or age (40 and over) with respect to hiring, promotion, firing, compensation or other terms, conditions or privileges of employment. Barloworld Handling, L.P. strongly supports and complies with Federal Anti-Discrimination Law in all respects and will not take any action against employees because they have exercised or exercise their rights under the law. Barloworld Handling, L.P. has an anti-discrimination policy and complaint procedure. A copy of that policy and procedure is available to all employees in the company's office. Barloworld Handling, L.P.
BY: _________________________________________ Its (Official Title)
9

 
 CM/ECF - U.S. District Court Northern District of Alabama - Docket R... https://ecf.alnd.uscourts.gov/cgi-bin/DktRpt.pl?787170538070149-L_9...

U.S. District Court Northern District of Alabama (Western) CIVIL DOCKET FOR CASE #: 7:05-cv-02552-LSC

CLOSED, STAY

Equal Employment Opportunity Commission v. Barloworld Handling LP Assigned to: Judge L Scott Coogler Cause: 42:2000 Job Discrimination (Age)

Date Filed: 12/16/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by C Emanuel Smith EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street South Birmingham, AL 35205 205-212-2054 Fax: 205-212-2041 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Mark Graham EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street South Birmingham, AL 35205 205-212-2054 Fax: 205-212-2041 Email: john.graham@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mildred Byrd EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street South Birmingham, AL 35205 205-212-2054 Fax: 205-212-2041 Email: Mildred.Byrd@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

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Defendant Barloworld Handling LP

represented by Gordon L Blair OGLETREE DEAKINS NASH SMOAK & STEWART PC One Federal Place, Suite 1000 1819 5th Avenue, North Birmingham, AL 35203 328-1900 Email: gordon.blair@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra B Reiss OGLETREE DEAKINS NASH SMOAK & STEWART PC 1819 5th Avenue, North Birmingham, AL 35203 328-1900 Email: sandra.reiss@odnss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peyton Lacy, Jr OGLETREE DEAKINS NASH SMOAK & STEWART PC 1819 5th Avenue, North Birmingham, AL 35203 328-1900 Email: peyton.lacy@odnss.com ATTORNEY TO BE NOTICED

Date Filed 12/16/2005 12/16/2005 01/20/2006 01/24/2006 01/25/2006 02/08/2006

#

Docket Text

1 COMPLAINT against Barloworld Handling LP , filed by Equal Employment Opportunity Commission.(BST, ) (Entered: 12/19/2005)
2 Summons Issued as to Barloworld Handling LP, del to pla for service. (BST, ) (Entered: 12/19/2005)
3 SUMMONS Returned Executed Barloworld Handling LP served on 1/5/2006, answer due 1/25/2006. (BST, ) (Entered: 01/23/2006)
4 ANSWER to Complaint by Barloworld Handling LP.(Reiss, Sandra) (Entered: 01/24/2006)
5 UNIFORM INITIAL ORDER - with appendices attached. Signed by Judge L Scott Coogler on 1/25/2006. (ADF, ) (Entered: 01/25/2006)
6 ACCEPTANCE and waiver of service by the Atty General (BST, ) (Entered: 02/08/2006)

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02/22/2006 03/06/2006 03/08/2006 03/10/2006 03/30/2006
04/06/2006 04/10/2006 04/11/2006 04/24/2006 04/27/2006 04/27/2006 05/04/2006 06/14/2006 06/28/2006 06/29/2006

7 REPORT of Rule 26(f) Planning Meeting. (Blair, Gordon) (Entered: 02/22/2006)
8 ORDER setting Scheduling Conference for 3/31/2006 at 9:30 AM in Tuscaloosa, AL before Judge L Scott Coogler. Signed by Judge L Scott Coogler on 3/6/2006. (ADF, ) (Entered: 03/06/2006)
9 NOTICE by Equal Employment Opportunity Commission of Compliance with the Court's Initial Order regarding filing of charges of discrimination and response (Attachments: # 1)(Graham, J) (Entered: 03/08/2006)
CLERK'S NOTICE: Scheduling Conference (set for 3/31/2006) is RESCHEDULED for Wednesday, 3/29/2006 at 3:30 PM before Judge L Scott Coogler.(ADF, ) (Entered: 03/10/2006)
10 SCHEDULING ORDER: Discovery due by 10/16/2006. Dispositive Motions due by 11/14/2006. Status Report due by 10/16/2006. Jury Trial set for 4/16/2007 at 9:00 AM in Tuscaloosa, AL. before Judge L Scott Coogler. Signed by Judge L Scott Coogler on 3/30/2006. (ADF) (Entered: 03/30/2006)
11 Ex Parte MOTION to Substitute Attorney by Equal Employment Opportunity Commission. (Graham, J) (Entered: 04/06/2006)
12 NOTICE of Appearance by Peyton Lacy, Jr on behalf of Barloworld Handling LP (Lacy, Peyton) (Entered: 04/10/2006)
13 ORDER granting 11 Motion to Substitute Attorney; C. Emanuel Smith substituted for Jacqueline McNair . Signed by Judge L Scott Coogler on 4/11/2006. (BST, ) (Entered: 04/11/2006)
14 Joint MOTION to Stay and Engage in Mediation by Barloworld Handling LP. (Lacy, Peyton) (Entered: 04/24/2006)
15 ORDER setting Settlement Conference for 5/17/2006 at 9:00 AM in TUSCALOOSA, AL before Judge L Scott Coogler. (See order for details) Signed by Judge L Scott Coogler on 4/27/2006. (ADF, ) (Entered: 04/27/2006)
ORDER granting 14 Motion to Stay deadlines and mediate case; settlement conference to be scheduled. Signed by Judge L Scott Coogler on 4/27/2006. (ADF, ) (Entered: 04/27/2006)
CLERK'S NOTICE: By agreement of the parties, the Settlement Conference set for 5/17/06 is RESCHEDULED for 6/14/2006 at 9:00 AM in TUSCALOOSA, AL before Judge L Scott Coogler.(ADF) (Entered: 05/04/2006)
Minute Entry for proceedings held before Judge L Scott Coogler : Settlement Conference held on 6/14/2006 in Tuscaloosa, AL; settlement agreement terms stated on the record (Court Reporter Lindy Fuller.) (ADF) (Entered: 06/14/2006)
16 Joint MOTION for Settlement (Motion to Enter Consent Decree) by Barloworld Handling LP. (Attachments: # 1 Att A - Consent Decree)(Reiss, Sandra) (Entered: 06/28/2006)
17 ORDER granting 16 Motion for Settlement. Signed by Judge L Scott Coogler on 06-29-06. (AES) (Entered: 06/29/2006)

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06/29/2006 06/29/2006

18 Joint MOTION to Dismiss by Barloworld Handling LP. (Reiss, Sandra) (Entered: 06/29/2006)
19 ORDER pursuant to the parties' joint stipulation of dismissal, DISMISSING CASE w/prej, each pty to bear own costs. Signed by Judge L Scott Coogler on 6/29/2006. (BST, ) (Entered: 06/29/2006)

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