• >

•

•

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO KENNETH J MUf/PH

EASTERN DIVISION

COlU';'SUS.OHIJ. Clerk

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v,

)

)

OVERNITE TRANSPORTATION COMPANY, )

)

Defendant.

)

)

C2 02 ' ~9t
JUnGf GRAHAM
CIVIL ACTION ~A1E JUOOE ABiL
C OMP LAINT JURY TRIAL DEMAND

NATURE OF THE ACTION

This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of

the Civil Rights Act of 1991 to correct unlawful employment practices on the basis ofdisability and

to provide appropriate relief to Jeff Bowman and a class of similarly situated persons who were

adversely affected by such practices. The Commission alleges that Defendant, Ovemite

Transportation Company, refused to hire Jeff Bowman and a class of similarly situated persons

because oftheir disability and that such practice was followed by Defendant on a nationwide basis.

JURISDICTION AND VENUE

1. Jurisdiction ofthis 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) ofTitle VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.§2000e-5(f)

(I) and (3) and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a.

I

• •
2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction ofthe United States District Court for the Southern District of Ohio, Eastern Division, this is a nationwide action seeking to remedy unlawful practices of Defendant wherever located.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I ofthe 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 Sections 706(f)(1) and (3) of Title VII, 42 U.S.c. §20003-5(f)(1) and (3). 4. At all relevant times, Defendant, Overnite Transportation Company (the "Employer"), has continuously been a foreign corporation qualified to do business in the State ofObio and the City ofColumbus, and has continuously had at least 15 employees. On information and belief, Defendant has facilities in most States and this action is intended to remedy unlawful practices at all facilities. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce under Section 101(5) ofthe 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 Employer has been a covered entity under Section 101(2) of the ADA, 42 U.s.C. § 12111(2) 7. More than thirty days prior to the institution of this lawsuit, Jeff Bowman filed a charge with the Commission alleging violations of Title I ofthe ADA by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled.

• •
8. Since at least on or about September 23, 1993, Defendant Employer has engaged in unlawful employment practices at its facilities nationwide, in violation of Section I02(a) of Title I of the ADA, 42 U.S.C. 12112(a). The practices include failing and refusing to hire qualified individuals with the disability ofepilepsy into any position (not including commercial motor vehicle operation) involving the operation oftow motors and/or forklifts and/or which is performed at, near or around heavy equipment, including without limitation the position of dockworker.
9. The effect of the practices complained of in paragraph 8 above has been to deprive Jeff Bowman and similarly situated persons of equal employment opportunities and otherwise adversely affect Jeff Bowman and similarly situated persons their status as applicants and employees, because of their disabilities.
10. The unlawful employment practices complained ofin paragraphs 8 and 9 above were and are intentional.
II. The unlawful employment practices complained ofin paragraphs 8 and 9 above were and are done with malice or with reckless indifference to the federally protected rights of Jeff Bowman and similarly situated individuals.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from failing and refusing to employ qualified individuals with disabilities and any other employment practice which discriminates on the basis of disability. B. Order Defendant Employer to institute and carry out policies, practices, and programs

• •
which provide equal employment opportunities for qualified individuals with disabilities, and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant Employer to make whole Jeff Bowman and similarly situated individuals, by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to the rightful place hiring of Jeff Bowman and other similarly situated individuals.
D. Order Defendant Employer to make whole Jeff Bowman and similarly situated individuals by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 8 and 9 above, including past and future outof-pocket losses suffered by the aggrieved individual(s) and not recovered as equitable relief under the ADA, in amounts to be determined at trial.
E. Order Defendant Employer to make whole Jeff Bowman and similarly situated individuals by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 8 and 9 above, including nonpecuniary losses suffered by the aggrieved individuals, such as emotional pain, suffering, inconvenience, loss of enjoyment oflife, and humiliation, in amounts to be determined at trial.
F. Order Defendant Employer to pay Jeff Bowman and similarly situated individuals punitive damages for its malicious and reckless conduct, as described in paragraphs 8 and 9 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action.

•

•

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

Nicholas Inzeo Acting Deputy General Counsel
Gwendolyn Y. Reams Associate General Counsel Washington, D.C.

Wa on (0031443) Regional Attorney .larrv·Watson@eeoc.gov

~4.11{-Y~
Solvita A. McMillan (0040011) Trial Attorney Sovita.McMillan@eeoc.gov
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Cleveland District Office Skylight Office Tower 1660 W. 2nd Street, Suite 850 Cleveland, Ohio 44113-1412 (216) 522-7453 Fax No. (216) 522-7430

 
 • •

' . ' ; !_'" ,. -' _'. 7~'~J Gl'.
Kcnndh j, '·";C,T:"t!y. Clerk (>,~!\':-;!Z!~~.;, Ohi']

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

)

)

OVERNITE TRANSPORTATION, INC., )

)

Defendant.

)

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

CIVIL ACTION NO. C-2-02-591
AMENDED COM P L A I N T
JURY TRIAL DEMAND
.: Glclc:Je'. (, V CLha-M

NATURE OF THE ACTION This is an action under Title I of the Americans 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 Jeff Bowman and a

class of similarly situated persons who were adversely affected by

such practices. The Commission alleges that Defendant, Overnite

Transportation, Inc., refused to hire Jeff Bowman and a class of

similarly situated persons because of their disability and that

such practice was followed by Defendant on a nationwide basis.

• •
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 of the Civi! Rights Act of 1964 {" Ti tle VII"}, 42 U.S.C.§2000e-5{f} {1} and {3} and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §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 Southern District of Ohio, Eastern Division, this is a nationwide action seeking to remedy unlawful practices of Defendant wherever located.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission {the "Commission"}, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title 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 Sections 706{f} {1} and {3} of Title VII, 42 U. S . C. § 2 0 0 03 - 5 (f) {1} and {3} . 4. At all relevant times, Defendant, Overnite Transportation, Inc. {the "Employer"}, has continuously been an Ohio Corporation doing business in the State of Ohio and the City of Columbus, and has continuously had at least 15 employees. On

• •

information and belief, Defendant has facilities in most States and

this action is intended to remedy unlawful practices at all

facilities. 5. At all

relevant

times,

Defendant

Employer 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 Employer has been a

covered entity under Section 101(2) of the ADA, 42 U.S.C.

§ 12111(2)

7. More than thirty days prior to the institution of this

lawsuit, Jeff Bowman filed a charge with the Commission alleging

violations of Title I of the ADA by Defendant Employer. All

conditions precedent to the institution of this lawsuit have been

fulfilled.

8. Since at least Since at least on or about September 23,

1993, Defendant Employer has engaged in unlawful employment

practices at its facilities nationwide, in violation of §102(a) of

Title I of the ADA, 42 U.S.C. 12111(a) by discriminating against

individuals with disabilities as defined in 42 U.S.C. 12101(2) (A)-

(C). The practices include the following:

a. rejecting qualified individuals with a medical history or

clinical diagnosis of epilepsy and/or diabetes mellitus

• •
for employment based upon a generalized or blanket exclusion without individually assessing the individual's ability to perform the essential functions of the job with or without a reasonable accommodation; b. failing and refusing to hire qualified individuals with a medical history or clinical diagnosis of epilepsy and/or diabetes mellitus into any position (not including commercial motor vehicle operation) involving the operation of tow motors and/or forklifts and/or which is performed at, near or around heavy equipment, including without limitation the position of dockworker; and, c. based upon reference to standards established by the U. S. Department of Transportation for drivers of commercial motor vehicles, rejecting individuals for employment because the individual was regarded as not suitable for employment in a position which requires the operation of a forklift (or similar motorized vehicle), and/or was regarded as not suitable for employment in a job position which requires the performance of work at or around heavy machinery because the individual has a medical history or clinical diagnosis of epilepsy or diabetes mellitus. 9. The effect of the practices complained of in paragraph 8 above has been to deprive Jeff Bowman and similarly situated persons of equal employment opportunities and otherwise adversely affect Jeff Bowman and similarly situated persons their status as

• •
applicants and employees, because of their disabilities.
10. The unlawful employment practices complained of in paragraphs 8 and 9 above were and are intentional.
11. The unlawful employment practices complained of in paragraphs 8 and 9 above were and are done with malice or with reckless indifference to the federally protected rights of Jeff Bowman and similarly situated individuals.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from failing and refusing to employ qualified individuals with disabilities and any other employment practice which discriminates on the basis of disability. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for qualified individuals with disabilities, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Jeff Bowman and similarly situated individuals, by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to the

• •

rightful place hiring of Jeff Bowman and other similarly situated

individuals.

D. Order Defendant Employer to make whole Jeff Bowman and

similarly situated individuals by providing compensation for past

and future pecuniary losses resulting from the unlawful employment

practices described in paragraphs 8 and 9 above, including past and

future out-of-pocket losses suffered by the aggrieved individual (s)

and not recovered as equitable relief under the ADA, in amounts to

be determined at trial.

E. Order Defendant Employer to make whole Jeff Bowman and

similarly situated individuals by providing compensation for past

and future nonpecuniary losses resulting from the unlawful

practices complained of in paragraphs 8 and 9 above, including

nonpecuniary losses suffered by the aggrieved individuals, such as

emotional pain, suffering, inconvenience, loss of enj oyment of

life, and humiliation, in amounts to be determined at trial.

f.

Order Defendant Employer to pay Jeff Bowman and

similarly situated individuals punitive damages for its malicious

and reckless conduct, as described in paragraphs 8 and 9 above, in

amounts to be determined at trial.

G. Grant such further relief as the Court deems necessary

and proper in the public interest.

H. Award the Commission its costs of this action.

• •
JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.
Gwendolyn Y. Reams Associate General Counsel Washington, D.C.
en «0021028) ervisory Trial Attorney ohn.Sargent@eeoc.gov
~ a.fiIl-IL~
Solvita A. McMillan' (0040011) Trial Attorney Sovita.McMillan@eeoc.gov
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Cleveland District Office Skylight Office Tower 1660 W. 2~ Street, Suite 850 Cleveland, Ohio 44113-1412 (216) 522-7453 Fax No. (216) 522-7430

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff;
v.
OVERNITE TRANSPORTATION COMPANY,
Defendant.

) Case No. 2:02-cv-591

)

) Judge Michael H. Watson

) Magistrate Judge Mark R. Abel

)

)

)

CONSENT DECREE

)

)

)

)

INTRODUCTION The United States Equal Employment Opportunity Commission (the "Commission" or

"EEOC") filed this action against the Defendant, Overnite Transportation Company ("Overnite

Transportation" or "Defendant") to enforce Title I ofthe Americans with Disabilities Act, 42

U.S.C. §1210l, et~ ("the ADA") and Title I of the Civil Rights Act of 1991, 42 U.s.C.

§1981a. The Commission's Complaint alleges that Overnite Transportation engaged in unlawful

employment practices in violation of the ADA by refusing to employ Charging Party Jeff

Bowman ("Bowman") as a dockworker because he has a disability as defined in Section

12102(2)(A)-(C) of the ADA. During discovery in this case Jeremy Smith ("Smith") was

identified as a similarly situated individual who allegedly was also denied employment as a

dockworker in violation ofthe ADA on the basis ofhis disability. In response, Ovemite

Transportation denied any violation ofthe ADA and specifically denied any violation ofthe

ADA with regard to the decisions not to employ Bowman or Smith.

As a result of the parties having engaged in settlement negotiations, the parties agreed

that this action should be finally resolved by entry of this Consent Decree. This Consent Decree

was entered into by the parties as an amicable way of resolving all outstanding differences that may have existed in this case. This Consent Decree is intended to and does fully and finally resolve any and all claims arising out of the Complaint filed by the Commission.
The parties do not object to the jurisdiction ofthe Court over this action and waive the Entry ofFindings ofFact and Conclusions of Law.
FINDINGS
It is ORDERED, ADJUDGED AND DECREED:
Having examined the terms and provisions ofthis Consent Decree and based on the pleadings, record, and stipulations of the parties, the Court finds the following:
I. This Consent Decree resolves all claims arising out of the issues between the Commission and Overnile Transportation and its successor UPS Ground Freight, Inc. in this lawsuit, including, without limitation, backpay, front pay, compensatory and punitive damages, injunctive and other affirmative relief, costs, and attorneys' fees and including any claims asserted on behalfof Bowman or Smith.
2. The Court has jurisdiction of the subject matter of this action and of the parties. 3. The terms and provisions ofthis Consent Decree are adequate, fair, reasonable, equitable, and just. The rights of the parties are adequately protected by this Consent Decree. 4. This Consent Decree conforms with the Federal Rules of Civil Procedure and the ADA and is not in derogation of the rights and privileges of any person. The entry ofthis Consent Decree will further the objectives of the ADA and will be in the best interests of Overnite Transportation, the Commission, and the public.
NON-ADMISSIONS 5. This Decree, being entered into with the consent of the Commission and Overnite Transportation and its successor, UPS Ground Freight Inc., shall not constitute an adjudication or
2

finding on the merits ofthis case nor shall it be deemed an admission by Defendant of any violation of the ADA or the 1991 Civil Rights Act. Ovemite Transportation and UPS Ground Freight Inc. deny any liability for any and all claims contained in the Complaint and deny that they have violated the ADA in any manner. Ovemite Transportation and UPS Ground Freight Inc. are entering into this Consent Decree solely for purposes of avoiding further litigation costs and expenses.
NON-DISCRIMINATION 6. In all matters arising from or relating to employment, Ovemite Transportation and its officers, agents, employees, successors, and assigns, and all of those in active concert or participation with them, or any of them, are enjoined from engaging in any employment practices at the Columbus and Memphis facilities which discriminate against a qualified individual with a disability because of the disability ofsuch individual in regard to application procedures, the hiring, and other terms, conditions, and privileges of employment. Nothing herein shall prevent or prohibit Overnite Transportation or its successor, UPS Ground Freight Inc., from using the Department of Transportation ("DOT") guidelines andior requirements when making hiring, promotion or similar employment decisions for positions covered by the DOT guidelines andior regulations.
DURATION OF CONSENT DECREE AND COMPUANCE REVIEWS 7. This Court shall retainjurisdiclion of this action for a period of two (2) years after entry of this Consent Decree. This Consent Decree shall expire by its own terms at the end of two (2) years without further action by the parties. 8. During the term ofthis Decree, the Commission may review compliance with this Decree. If the Commission has reasonable cause to believe that Defendant has violated any of the terms of this Consent Decree, it shall notify UPS Ground Freight Inc. in writing, and the
3

Company will then have ten (10) business days in which to satisfy the Commission that there has not been a violation or that the violation has been corrected. If, at the expiration ofsuch time period, the Commission has not been so satisfied, then it may immediately apply to the Court for appropriate relief.
9. Nothing in this Decree shall preclude the Commission from bringing suit to enforce the teIIIls of the Decree; nor shall this Decree preclude future action by the Commission or other persons to remedy any other alleged violations ofthe ADA by Overnite Transportation.
MONETARY RELIEF 10. In full settlement of all claims alleged in the Commission's Complaint, Defendant shan pay the following amounts: $107,000.00 to JeffBowman and $3,000.00 to Jeremy Smith. Half ofeach payment shall be for W-2 wages and legally required deductions shall be made and the other half ofeach payment shall be for non-wage compensatory damages, for which a 1099 statement will be issued. Payment ofthe foregoing amounts resolves any and all ofthe Commission's claims arising out of this Civil Action No. 2:02-cv-591 and EEOC Charge No. 220961449 and resolves all claims asserted on behalfof Bowman and Smith. 11. The Commission will secure from Mr. Bowman and Mr. Smith a release and waiver of claims against Defendant pertaining to this litigation and the charge of discrimination which gave rise to the Commission's lawsuit. A copy of the release and waiver of claims is attached as Attachment "A". After receiving confirmation from Mr. Bowman and Mr. Smith that they have each received the amounts specified in Paragraph 10 above, the Commission shall promptly transmit the executed Attachment A Release and Waiver forms to Defendant.
4

NOTICE POSTING 12. Defendant shall post and keep posted, during the tenn of this Decree, in conspicuous places at all of its facilities in Columbus and Memphis where notiees to employees or applicants are customarily posted, Attachment B (Notice to All Employees).
STAFF TRAINING AND DEVELOPMENT 13. Within one hundred twenty (120) days of the entry ofthis Consent Decree, UPS Ground Freight Inc. agrees to provide ADA training for its Regional Human Resource employees covering the Columbus and Memphis facilities. 14. UPS Ground Freight Inc. agrees to include the following topics in the ADA training sessions for the Regional Human Resource employees covering the Columbus and Memphis facilities:
a. an overview of the ADA, the Company's obligations under the ADA, and applicant and employee rights under the ADA;
b. non-discrimination in hiring and recruitment; c. reasonable accommodation in the application and hiring process; d. the process for addressing reasonable accommodation requests in the
application and hiring process; e. examples of accommodations in the application and hiring process for
people with disabilities, including people who have epilepsy-related disabilities; and
f. UPS Ground Freight Inc.'s commitment to meeting the requirements of
the ADA. IS. Defendant will report in writing to the Associate Regional Attorney, Equal Employment Opportunity Commission Cleveland Field Office, when the undertaking outlined in paragraphs thirteen (13) and fourteen (14) of this Decree have been completed. The report will describe the manner in which the undertakings were carried out, including a listing of the dates, locations for the Staff Training and Development described above together with a copy of the
5

attendance roster. This report shall be submitted not later than one sixty (160) days from the date

of this Decree.

16. This Court shall retain jurisdiction of this case for pwposes of compliance with

this Decree and entry of such further orders as may be necessary or proper to effectuate the

pwposes of this Decree.

17. Each party to this action shall bear its own costs and fees, including bearing its

Ilpll-I I own attorneys fees.

t!;.. .

/!taay IT IS SO ORDERED THIS

of

,2008.

6

ATTACHMENT A

RELEASE AND WAIVER

I, _ _ _ _ _ _ _ _ _ _, in consideration of the terms of the Consent Decree which has been entered in EEOC. et al. v. Ovemite Transportation Company. Civil Action No. 2:02-cv591, United States District Court for the Southern District of Ohio, Eastern Division, hereby release and waive any claim that I may have against Overnite Transportation Company and/or its successor UPS Ground Freight Inc., their parents, subsidiaries or affiliates and their officers, agents, employees, successors and assigns which is covered by the allegations in the above-cited Civil Action and/or EEOC Charge No. 220961499.
I further acknowledge that the contents of this release and waiver and its meaning have been explained to me and I understand its terms.

Date: _ _ _ _ _ _ __

Signature

ATTACHMEI\"T B
NOTICE TO ALL EMPLOYEES
This Notice is being posted pursuant to a Consent Decree voluntarily entered into by Overrute Transportation Company ("Overrute Transportation") and the Equal Employment Opportunity Commission ("EEOC") in connection with the settlement in the case entitled EEOC, et al. v. Overnite Transportation Company. Case No. 2:02-cv-591 (S.D. Ohio E.D.).
The EEOC lawsuit alleged that Overrute Transportation violated the Americans With Disabilities Act ("ADA") by failing and refusing to employ a qualified individual with a certain disability because of that person's disability. Overrute denied any violation of the ADA.
Under the terms of the Consent Decree, Overrute Transportation agreed:
Not to violate the ADA;
Provide a settlement to the individuals alleging the violation;
Provide training to Regional Human Resource Managers in Columbus and Memphis concerning the requirements of the ADA; and
Post this Notice.
Federal law prohibits covered employers from discriminating against any employee or applicant for employment on the basis of disability, sex, race, color, national origin, or age, and from retaliation. Should you have any complaints of discrimination or retaliation, you may contact the EEOC. Dated: _ _ _ _ _ __
TInS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
This Notice must remain posted for two (2) years from the date shown above and must not be altered, defaced, or covered by any other material. Any questions concerning this Notice or compliance with its provisions may be directed to the U.S. Equal Employment Opportunity Commission, 1-800-669-4000 or TTY 1-800-669-6820.

 
 Equal Employment Opportunity Com’n v. Overnite Transp. Co., Not Reported in...

2006 WL 2594479 United States District Court, S.D. Ohio, Eastern Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
OVERNITE TRANSPORTATION COMPANY, Defendant.
No. 2:02CV591. | July 5, 2006.
Attorneys and Law Firms
Solvita A. McMillan, Cleveland, OH, for Plaintiff.
Charles Matthew Roesch, Louise S. Brock, Dinsmore & Shohl, Cincinnati, OH, Jay J. Grytdahl, McGuire Woods LLP, Chicago, IL, for Defendant.
Opinion
OPINION AND ORDER
WATSON, J.
*1 This matter is before the Court upon Defendant’s Motion for Summary Judgment (Doc. 30) and Plaintiff’s Motion for Partial Summary Judgment. (Doc. 31) The parties have also filed motions in limine to exclude expert testimony under Fed.R.Evid. 703. (Docs.29, 65)
A. FACTS This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct alleged discrimination on the basis of disability. Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), also seeks compensatory relief for Jeffery Bowman and a class of similarly situated persons.
1. Jeffery Bowman Claimant Jeffery Bowman has a seizure disorder that is partially controlled by medication. Despite his medication, Bowman has approximately one seizure per year. (Doc. 40, Grisolia Depo. at 11-12) Bowman’s seizures are of the “grand mal” variety, characterized by the following symptoms: loss of muscle control, loss of bowel and bladder control, biting the tongue, and violent

jerking of his limbs. (Doc. 35, Bowman Depo. at 151-152) Prior to having a seizure, Bowman experiences an “aura” or “prodrome” for at least 30 minutes prior to the seizure. (Id. at 42-44) Bowman also experiences some side effects from his medication, Depakote. Bowman has had gastrointestinal symptoms in the past, but those have resolved themselves for the most part. (Id. at 53-54) Bowman also reported moodiness, but stated that he no longer has this problem since his dosage has been lowered. (Id. at 54) Bowman has also experienced some effects on his personality, including paranoia and “flat effect.” (Id. at 54) Bowman believes this “flat affect” has kept him from getting a job because his career counselors advised him to “liven it up” when interviewing. (Id. at 52-53) However, Bowman stated that during the relevant time period, he was able to do most normal activity. (Id. at 88) Bowman also stated that he did not believe that his personality or affect has prevented him from holding a job, or maintaining his marriage for twenty-five years. (Id. at 55)
For approximately two weeks in July of 1996, Bowman was a temporary worker at Defendant Overnite Transportation Company’s (“Overnite”) service center in Columbus, Ohio. (Id. at 72-73) While working at the service center, Bowman applied for permanent employment as a dockworker for Overnite. (Id. at 75) The essential functions of the dockworker position include using a forklift for extended periods of time at a rapid pace. (Doc. 34, Bowen Depo. at 34-43; Ex. 1) The dockworker must also handle hazardous materials. (Id.) After an interview, Overnite extended a conditional offer of employment to Bowman. (Bowman Depo. at 77) One condition of the offer was that Bowman complete a medical screening. On his medical questionnaire, Bowman indicated that he had epilepsy by checking the “yes” box in response to the question whether in the past five years he had “epilepsy/fainting spells/severe headaches.” (Doc. 50, Ex. A to Neely Declaration) in the “Comments” section, Bowman wrote, “I am epileptic. I am under a doctor’s care. I rarely have seizures and they do not create a problem for me being able to do any type of work.” (Id). Overnite sent this questionnaire to its independent contractor, Pembrooke Occupational Medicine (“Pembrooke”), for further review. (Bowen Depo. at 12)
*2 Dr. John Cametas, a physician employed by Pembrooke, was responsible for reviewing Bowman’s file. (Doc. 37, Cametas Depo. at 67) Dr. Cametas is familiar with Overnite’s Columbus facility and the job requirements of various workers at the facility. (Id. at 16, 39-41, 65) Dr. Cametas is also familiar with the Department of Transportation (“DOT”) regulations. (Id. at 13-15)1 Dr. Cametas explained that while the DOT regulations placed driving restrictions on people with
1

Equal Employment Opportunity Com’n v. Overnite Transp. Co., Not Reported in...

diabetes and seizure disorders:

1

Under these regulations, a person shall not drive a

“commercial motor vehicle” unless he or she is

physically qualified to do so. 49 C.F.R. § 391.41(a). A

“commercial motor vehicle” is defined as “any

self-propelled or towed vehicle used on public

highways in interstate commerce to transport

passengers or property” which meets certain weight and

use requirements. 49 C.F.R. § 390.5.

would learn this type of history from talking to the patient and his or her doctor. (Id.) Dr. Cametas also stated that he did not believe that the feeling of an aura or prodrome were reliable in predicting and preventing seizures. (Id. at 50-51, 55) Finally, Dr. Cametas stated that he has not consulted any scientific studies or outside sources, such as the Epilepsy Foundation, when assessing the risk that a potential hire with epilepsy poses. (Id. at 38-39) Instead, Dr. Cametas makes the decision based on his personal judgment. (Id. at 39)

I don’t follow the DOT regs for other employees, such as, those that may work on the dock. I don’t just categorically say, the DOT regs won’t let you drive a truck, so therefore I can’t let you on the dock.... I evaluate every person on the basis of what I think that person can do. Every one-everything is tailored to that particular situation. So there’s not a direct correlation: You have diabetes, on insulin, you can’t drive a truck; therefore, you can’t work on the dock. That doesn’t work that way.... Every individual is different ... (Id. at 34)2

2

In a telephone interview during the EEOC’s

investigation, Dr. Cametas stated that in the case of

Bowman, he “used the same guidelines that the

Department of Transportations uses for its truck

drivers, sometimes I am a little more lenient with

people who are on the dock because they are not

driving continuously but statistically if someone hasn’t

had a seizure for a long time I let them work as opposed

to Mr. Bowman here who has had two previous

seizures.” (Cametas Depo., Ex. 1)

Dr. Cametas stated that he would recommend someone for hire who had diabetes, even if it was not well-controlled. (Id. at 20) Dr. Cametas explained that he would talk to the potential hire’s doctor to explain the work being done on the dock, and to see if the doctor could get his diabetes better controlled. (Id.) Dr. Cametas stated that he could not preclude someone with diabetes from working on the dock. (Id. at 21)
Dr. Cametas explained that he was “a little biased and fearful” of epileptics harming themselves and others because he has had several patients who have died during a seizure. (Id. at 28, 30, 31) For example, one patient died when he fell into the bathtub and drowned. (Id. at 30) Dr. Cametas stated that he would feel more comfortable with hiring a person with epilepsy if that person has been on the same medication and has not had any seizures for a period of time. (Id. at 29) Dr. Cametas explained that this seizure-free period of time would need to be more than five years. (Id. at 37) Dr. Cametas stated that he would also find out if the person was diligent in taking his or her medication. (Id. at 45) Dr. Cametas explained that he

Bowman had suffered two seizures in the year preceding his application for employment with Overnite. (Id. at 60-61) Dr. Cametas reviewed Bowman’s medical records and spoke with Bowman, but did not speak with Bowman’s physician. (Id. at 67, 69, 73) Dr. Cametas did not ask Bowman about the frequency of his seizures. (Bowman Depo. at 79) Dr. Cametas stated that the following risks concerned him regarding Bowman working in the dockworker position:
*3 If he were to have ... a seizure, the forklift could continue to run off the dock, which is four or five ... feet from ground level. There are a lot of people on the dock. He could run into somebody and pin someone. He could tip it over with freight on it pinning someone. He could kill himself.... For example, if he had a pallet full of hazardous materials and he has a seizure, he falls ... off the dock and he releases hazardous materials in that area, he could hurt himself and other people. It’s just too dangerous of a place for a person to have a seizure.
(Id. at 39-41) As Dr. Cametas explained: “I can’t in good conscience tell that person to go ahead and do that job when I think that he may end up hurting himself when there are other jobs available that he could that would not run that risk.” (Cametas Depo. at 40) Dr. Cametas recommended that Overnite not hire Bowman. (Id. at 72-73)
Allegedly relying on that recommendation, Overnite decided not to hire Bowman. (Id. at 72-73) In Overnite’s spreadsheet identifying applicants whom Pembrooke recommended not be hired, the reason stated for Bowman’s rejection is “Cannot Perform the Essential Functions Necessary for Employment.” (Doc. 49, Appendix to Personen Aff. at 11, 14) When Dr. Cametas informed Bowman of his decision not to recommend Bowman’s hiring, he did not attempt to inquire how Bowman might otherwise be accommodated or what measures could be taken to reduce the risks posed by Bowman’s condition. (Bowman Depo. at 78-79)
2

Equal Employment Opportunity Com’n v. Overnite Transp. Co., Not Reported in...

Dr. Cairns, Bowman’s treating physician, wrote letter regarding Bowman after Dr. Cametas made his negative recommendation. (Doc. 36, Cairns Depo., Ex. 3) Dr. Cairns states that he “would not feel that there should be any restrictions on [the] proposed employment.” (Id .) However, Dr. Cairns states that he would defer to the decision of the “Corporate Physicians” which are more familiar with Bowman’s work place. (Id.)
Both before and after his application to work at Overnite, Bowman has been successfully employed in positions requiring the use of forklifts. From 1981 through 1995, Bowman worked at Nissan, spending an average of an hour a day on a forklift. (Id. at 20-21) Bowman lost his job at Nissan as a result of a plant shutdown. (Id. at 11) In May of 1997, Bowman was hired by Rockwell as a machine operator, a job requiring an hour or two per day on a forklift. (Id. at 105-107) While at Rockwell, Bowman’s condition was accommodated by keeping a supply of Bowman’s medication with a company nurse at all times. (Doc. 50, Bowman Affidavit attached to Neely Declaration) Bowman was laid off from his job at Rockwell in May of 2003. (Bowman Depo. at 135)
2. Jeremy Smith The facts relating to Jeremy Smith are similar to those relating to Bowman. In March of 1996, Smith applied for a dockworker position at Overnite’s Memphis, Tennessee facility. Smith also has a seizure disorder, and had experienced two seizures within months of his application. (Doc. 45, Smith Depo. at 51, 54) Smith stated that he has no limitations on his activities as long as he takes his medications. (Id. at 60-61) However, Smith explained that these medications cause him to have migraine headaches and mood swings “every once in a while.” (Id. at 53)
*4 Dr. Cametas reviewed Smith’s medical files and spoke to Smith about his condition. (Cametas Depo. at 108-109) Dr. Cametas did not have Smith’s most recent medical records, and was not aware of the recent seizures. (Id. at 80, 108) Dr. Cametas determined that Smith could not safely perform the duties of a dockworker at the Memphis facility. (Id. at 81) Dr. Cametas explained that Smith had repeated changes in his medication, had complained to his doctor on one occasion that he was sleepy from his medication, and had an abnormal EEG. (Id. at 80-82) As a result, Smith was not hired.
Prior to applying for work at Overnite, Smith worked for two months at Southern Estates in a job where he was required to operate a forklift on a raised platform three or four times a day. (Smith Depo. at 12) However, Smith has admitted that if he were to not take his medication and have a seizure while at work, he “will die” or be “very

hurt.” (Id. at 61-64)
Smith never filed a charge with the EEOC, but was identified during discovery as the only other applicant for a position as a dockworker at Overnite who has epilepsy.
3. John Spindler John Spindler is not a claimant in this case. Spindler suffers from a seizure disorder, similar to that of Bowman and Smith. (Doc. 46, Spindler Depo. at 26) He did not disclose this condition to Overnite, and in July 1991, he was hired. (Id. at 6) Overnite employed Spindler for twelve years as a dockworker. (Id. at 6, 8) Spindler suffered a seizure at work in June 1997. (Id. at Ex. 3) Spindler’s manager at the time, Mr. John Reed, was not concerned about Spindler’s ability to continue working on forklifts. (Doc. 43, Reed Depo at 18-31) Spindler continued to work on forklifts until 2003, when he took medical leave for reasons unrelated to his seizure disorder. (Spindler Depo. at 24-25)
B. ANALYSIS
1. Summary Judgment Standard Summary judgment is proper when the record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed R. Civ. P. 56(c). While the moving party must demonstrate an absence of evidence to support the non-moving party’s case, “the plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of production, the non-moving party may not rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Such evidence must be sufficient for a jury to reasonably find in favor of the non-moving party. Id. at 252.
2. Laches *5 Overnite argues that the EEOC should be barred from pursuing this action based on its unreasonable delay in filing this action. The EEOC responds that as a governmental agency, it is not bound by the doctrine of laches.
3

Equal Employment Opportunity Com’n v. Overnite Transp. Co., Not Reported in...

The Supreme Court has indicated otherwise. In Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355, 373, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), the Court explained that despite the procedural protections of the statute, “a defendant in a Title VII enforcement action might still be significantly handicapped in making his defense because of an inordinate EEOC delay in filing the action after exhausting its conciliation efforts.” The Court stated that when this occurs, the federal courts do not lack discretionary remedial power. Id. Although the actual language of Occidental Life does not mention laches, a number of district and circuit courts have applied the doctrine to bar untimely Title VII suits filed by the EEOC. EEOC v. Luby’s Inc., 2005 WL 3560616, *7, n. 2 (D.Ariz.2005); EEOC v. Autozone, Inc., 258 F.Supp.2d 822, 826 (W.D.Tenn.2003); EEOC v. Peterson, Howell & Heather, Inc., 702 F.Supp. 1213, 1220 (D.Md.1989); EEOC v. Louisiana Power & Light Co., 1989 WL 35915, *2 (E.D.La.1989); EEOC v. Star Tool and Die Works, Inc., 699 F.Supp. 120, 121 (E.D.Mich.1987), citing EEOC v. Dresser Industries, Inc. ., 668 F.2d 1199, 1201-202 (11th Cir.1982); EEOC v. Alioto Fish Co., 623 F.2d 86 (9th Cir.1980); EEOC v. Liberty Loan Corp., 584 F.2d 853 (8th Cir.1978) (and district court cited therein); see also EEOC v. Rama Printing, 1991 WL 64060, *3 (W.D.N.Y.1991) (stating that it is evident that a defendant unduly prejudiced by excessive EEOC delay may have an avenue of relief, whether it is under the Administrative Procedures Act, the doctrine of laches, or Occidental Life ). In an unpublished, per curiam decision, the Sixth Circuit applied the doctrine of laches in a EEOC subpoena enforcement case arising under Title VII. E.E.O.C. v. National City Bank, 1988 WL 136541, *2 (6th Cir.1988). To apply laches in the context of an EEOC action, a court must find “both that the plaintiff delayed inexcusably in bringing the suit and that this delay unduly prejudiced defendants.” Dresser Indus., Inc., 668 F.2d at 1202.
Courts have taken varying positions on what constitutes an unreasonable delay between the filing of an EEOC charge and the filing of a lawsuit. See EEOC v. Acorn Niles Corp., 1995 WL 519976, *4 (N.D.Ill.1995), citing EEOC v. Dresser Indus., Inc., 668 F.2d 1199, 1202 (11th Cir.1982) (delay of five years and eight months unreasonable); EEOC v. Alioto Fish Co., 623 F.2d 86, 88 (9th Cir.1980) (delay of five years and two months unreasonable); EEOC v. Massey-Ferguson, Inc., 622 F.2d 271, 278 (7th Cir.1980) (delay of four years and nine months unreasonable); EEOC v. Liberty Loan Corp., 584 F.2d 853, 857-58 (8th Cir.1978) (delay of four years and four months unreasonable); EEOC v. Peterson, Howell & Heather, Inc., 702 F.Supp. 1213, 1222 (D.Md.1989) (delay of five years and three months unreasonable); EEOC v. Star Tool and Die Works, Inc., 699 F.Supp. 120, 122 (E.D.Mich.1987) (delay of seven and one-half years unreasonable); EEOC v. Firestone Tire and Rubber Co., 626 F.Supp. 90, 92 (M.D.Ga.1985) (delay of four years

and eleven months unreasonable); EEOC v. Bray Lumber Co., 478 F.Supp. 993, 997 (M.D.Ga.1979) (delay of four years and five months unreasonable); EEOC v. Warshawsky and Co., 768 F.Supp. 647, 657 (N.D.Ill.1991) (delay of four years and two months not unreasonable); EEOC v. Jacksonville Shipyards, Inc., 690 F.Supp. 995, 1000 (M.D.Fla.1988) (delay of five years and ten months not unreasonable).
*6 Here, the total time between the filing of Bowman’s charge and the EEOC’s filing of its lawsuit was approximately five years and six months. However, one district court has suggested that the reasonableness of the EEOC’s delay does not depend on the total amount of time between filings, but on the EEOC’s reason for the delay. EEOC v. Autozone, Inc., 258 F.Supp.2d at 826-27. In this case, the EEOC states that the period of time of three years and seven months from the filing of Bowman’s charge until the failure of conciliation should not be considered for purposes of laches. The EEOC argues further that two months of this period of time is attributable to Overnite’s own request for additional time to respond to EEOC’s requests for information. The EEOC admits that the two-year and two month period after the failure of conciliation is lengthy, but argues that this is a complex case. The Court rejects the EEOC’s arguments, and finds that a delay of five years and six months is unreasonable based on both the amount of time and the EEOC’s reason for the delay.
A finding of unreasonable delay alone is insufficient to warrant the application of laches. Overnite must also show that it was unduly prejudiced. Overnite argues that it was prejudiced because the ultimate decisionmaker in the decision to not hire Bowman has retired from Overnite and other witnesses have no recollection of Bowman or conversations with Bowman. Overnite also states that it has not been able to locate any Overnite employee with personal knowledge regarding Smith’s application for employment, and Smith’s application was discarded according to company policy, given that there was no charge filed by Smith.
As one district court has noted, the weight of circuit authority supports the proposition that a defendant’s failure to preserve evidence upon prompt notice of a pending claim from the EEOC should not be held against the Commission. EEOC v. Autozone, Inc., 258 F.Supp.2d at 828-29, citing Howard v. Roadway Express, Inc., 726 F.2d 1529, 1533 (11th Cir.1984) (holding that the defendant was not prejudiced because it had prompt notice and “could have maintained its records and taken testimony of key employees in anticipation of the ensuing litigation.”) Accordingly, the Court finds that Overnite was not unduly prejudiced. Therefore, Overnite is not entitled to the application of the laches defense.
4

Equal Employment Opportunity Com’n v. Overnite Transp. Co., Not Reported in...

3. Discrimination under the ADA In order to prove discrimination under the Americans with Disabilities Act (“ADA”), the EEOC must prove the following three elements: (i) that he is an individual with a disability; (ii) that he is otherwise qualified to perform the job requirements, with or without reasonable accommodation; and (iii) that he suffered an adverse employment action “because of” his disability. Holiday v. City of Chattanooga, 206 F.3d 637, 642 (6th Cir.2000).3 Overnite argues that the EEOC has not established the first two elements.

3

The Sixth Circuit has explained that there is no need to

apply the McDonnell Douglas burden-shifting analysis

in cases where the issue is whether the employee is

qualified to perform the essential functions of the job

with or without a reasonable accommodation. Monette

v. Electronic Data Systems Corp., 90 F.3d 1173, 1183

(6th Cir.1996).

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(j)(1). When determining whether an individual is substantially limited by a major life activity, the Court is instructed to consider: (i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

*7 Under the ADA, an individual has a disability if he: (1) has a physical or mental impairment that substantially limits one or more of the major life activities of such an individual; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2). The EEOC argues that Bowman and Smith were both actually disabled and were “regarded as” disabled because of their epilepsy.
An individual suffering from epilepsy can be disabled under the ADA. See Otting v. J.C. Penney Co., 223 F.3d 704, 709-10 (8th Cir.2000); see also Rutlin v. Prime Succession, Inc., 75 F.Supp.2d 735, 737 (W.D.Mich.1999) (stating that epilepsy can be disabling, depending on how it affects the individual). Congress specifically contemplated epilepsy as a potentially disabling impairment when it passed the ADA. See H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 52, reprinted in 1990 U.S.C.C.A.N. 303, 334. The EEOC presents literature concerning the effects of epilepsy on the affected population. However, the Supreme Court has stated that characterizing groups of people as disabled was not the intent of Congress, and that each individual’s impairment must be evaluated on a case-by-case basis. Sutton v. United Air Lines, 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); see also Rutlin, 75 F.Supp.2d at 737 (specifically rejecting the contention that epileptics are per se disabled).
The EEOC argues that Bowman and Smith are substantially limited in the major life activities of caring for themselves, interacting with others, and thinking. The term “substantially limits” means: (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

29 C.F.R. § 1630.2(j)(2). In addition, the mitigating effects of medication must be considered when evaluating the impairment. Sutton, 527 U.S. at 488 (stating that “the ADA’s coverage is restricted to only those whose impairments are not mitigated by corrective measures”); Hein v. All America Plywood Co., Inc., 232 F.3d 482, 487 (6th Cir.2000) (noting that an individual is not disabled where an otherwise substantially limiting impairment is brought under control by medication.). In addition, the Fourth Circuit has held that “[t]o hold that a person is disabled whenever that individual suffers from an occasional manifestation of an illness would expand the ADA beyond all bounds.” EEOC v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir.2001); see also Rutlin, 75 F.Supp.2d at 737-38 (plaintiff with intermittent seizures held not disabled, following rationale stated in Sara Lee Corp.).
*8 There is no evidence in the record that Bowman and Smith are significantly restricted as to the condition, manner or duration under which they care for themselves, interact with others, and think compared to the average person. Both Bowman and Smith stated that their epilepsy does not limit them in the normal activities of life because their epilepsy is largely controlled by medication. While Bowman and Smith still experience seizures despite medication, and are not capable of such activities during a seizure, the ADA does not encompass such occasional manifestations of an illness.
However, if the medication itself produces disabling side-effects, a finding of disability is appropriate. Sutton, 527 U.S. at 484. Bowman stated that his medication has caused gastrointestinal problems and moodiness, but he explained that these problems have resolved over time. Bowman claims that his medication affects his ability to interact with others, but Bowman has maintained a twenty-five year marriage, and has had no difficulty in
5

Equal Employment Opportunity Com’n v. Overnite Transp. Co., Not Reported in...

holding a job. Moreover, Bowman’s personal physician, Dr. Cairns, stated that Bowman has not complained of his medication having any effect on his mood or affect. (Doc. 36, Cairns Depo. at 31). Similarly, Smith states that his medication causes occasional migraine headaches and moodiness, but that he has no limitations on his activities while he is taking his medications. (Id. at 60-61) The Court finds that these side effects are not of the nature, severity, or duration which would lead to a finding of a disability. Accord Rutlin, 75 F.Supp.2d at 738 (holding that very minor side effects of epilepsy medication are not substantially limiting). Therefore, the EEOC has not raised a genuine issue as to whether either claimant was actually disabled under the ADA.
However, an individual can also prove he is disabled under the ADA if he can show that the employer regarded him as having a disability. See 42 U.S.C. § 12102(2). An individual may be “regarded” as having a disability if the employer “mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities,” or “mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.” Sutton, 527 U.S. at 489. “In both cases, it is necessary that a covered entity entertain misperceptions about the individual-it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.” Id.
The purpose of the “regarded as” prong is to prevent an employer from acting against an individual based on myths and stereotypes. Ross v. Campbell Soup Co., 237 F.3d 701, 708 (6th Cir.2001). Proving that an employer regarded a job applicant as disabled is a question of the employer’s state of mind. Id. This question is not easily answered at the summary judgment stage. Id. at 706.
*9 The EEOC argues that Dr. Cametas regarded Bowman and Smith as being disabled in the major life activities of thinking, interacting with others, and working. Overnite points out that Dr. Cametas is an independent contractor, and is not employed by Overnite. However, the Sixth Circuit has made it clear that “[e]mployers do not escape their legal obligations under the ADA by contracting out certain hiring and personnel functions to third parties.” Holiday, 206 F.3d at 645.
The EEOC has produced no evidence that Dr. Cametas regarded the claimants as substantially limited in the major life activities of thinking or interacting with others. However, the EEOC also argues that Dr. Cametas regarded the claimants as substantially limited in the major life activity of working. When proving that an employee is regarded as disabled in the major life activity of working, a plaintiff must show that the employer thought that the employee’s disability would prevent him

from performing a broad class of jobs. Holiday, 237 F.3d at 709. The EEOC has submitted testimony by Dr. Cametas stating that in addition to the dockworker position at Overnite, he would not want individuals with epilepsy to work as a window washer. (See Cametas Depo. at 64) Dr. Cametas also states that he would be concerned if an individual with epilepsy was working with a saw or cutting equipment. (Id. at 66)4 Based on the testimony of Dr. Cametas, the Court finds that there is a genuine issue as to whether Dr. Cametas thought that an individual with epilepsy would be prevented from performing a broad class of jobs.

4

Dr. Cametas was questioned about other situations,

such as working with a drill press, but he replied that he

would need to look at the whole environment to

determine whether he would recommend an individual

with epilepsy for that position. (Cametas Depo. at

63-66)

The Court also finds that there is a genuine issue as to whether Bowman and Smith were qualified for the dockworker position. It is a defense if, with or without reasonable accommodation, an employee poses a direct threat to himself or others at the workplace. Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 78, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002). A direct threat means that there is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Hamlin v. Charter Tp. of Flint, 165 F.3d 426, 431 (6th Cir.1999), quoting 29 C.F.R. § 1630.2(r). A “significant risk” is one where there is a “high probability of substantial harm; a speculative or remote risk is insufficient.” Id. at 432, quoting 29 C.F.R. § 1630.2(r).
The analysis of whether a job applicant poses a direct threat considers four factors: (1) the duration of the risk; (2) the nature and potential severity of the harm; (3) the likelihood that the potential harm would occur; and (4) the importance of the potential harm. Holiday, 206 F.3d at 648. These factors operate on a sliding scale; if the consequences of the risk are severe, a low likelihood of risk may still justify an adverse employment action. Mauro v. Burgess Medical Center, 137 F.3d 398 (6th Cir.) (holding that employer was justified in terminating an HIV-positive surgical technician because the risk, though small, could result in death), cert. denied, 525 U.S. 815, 119 S.Ct. 51, 142 L.Ed.2d 39 (1998).
*10 There is a dispute among the circuit courts as to who bears the burden of proof on the issue of whether an employee poses a direct threat. See Branham v. Snow, 392 F.3d 896, 906, n. 5 (7th Cir.2004) (holding that it is employer’s burden to show that employee posed a direct threat to workplace safety that could not be eliminated by
6

Equal Employment Opportunity Com’n v. Overnite Transp. Co., Not Reported in...

a reasonable accommodation, but noting caselaw to the contrary). The Sixth Circuit has not yet ruled on the issue, but has made reference to the “defense” of direct threat. Hamlin, 165 F.3d at 431 (“As a defense to [plaintiff’s] claims, [defendant] argued that [plaintiff] posed a direct threat ...”); see also E.E .O.C. v. Northwest Airlines, Inc., 246 F.Supp.2d 916, 926 (W.D.Tenn.2002) (holding that defendants failed to carry their burden of proving that plaintiff posed a direct threat in setting forth legitimate, non-discriminatory reason why he was not hired); EEOC v. Chrysler, 917 F.Supp. 1164, 1171-72 (E.D.Mich.1996) (relying on language of the ADA itself and placing burden on employer), rev’d, 172 F.3d 48 (6th Cir.1998) (reversed on other grounds). The ADA provides:
It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.
42 U.S.C. § 12113(a). The term “qualification standards” may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. 42 U.S.C. § 12113(b). Based on the language of the ADA and the facts of this case, the Court finds that Overnite has the burden of proving that Bowman and Smith posed a direct threat to themselves or others.
Dr. Cametas recommended that Overnite not hire Bowman or Smith. Dr. Cametas decided that, because of the fast-paced environment at Overnite’s facility and the hazardous nature of the materials dockworkers handle, the elevated risk posed by an applicant whose seizures are only partially controlled was unacceptable. The EEOC points out that Bowman operated forklifts both before and after his period of temporary employment with Overnite. However, one employer’s willingness to bear the risk of harm does not constitute evidence rendering other employers liable under the ADA for their refusal to bear that same risk. See LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir.1998); but see Gilday v. Mecosta County, 124 F.3d 760, 765-66 (6th Cir.1997) (where ADA plaintiff currently holds a position similar to the one from which he was terminated, there is sufficient evidence to create factual question as to whether plaintiff was qualified to perform the essential functions of the job).

*11 The EEOC also argues that Dr. Cametas failed to make the type of individualized inquiry required by the ADA. As the Sixth Circuit has explained:
The ADA mandates an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position. In order to properly evaluate a job applicant on the basis of his personal characteristics, the employer must conduct an individualized inquiry into the individual’s actual medical condition, and the impact, if any, the condition might have on that individual’s ability to perform the job in question.

Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir.2000).5 Overnite argues that under Pesterfield v. Tennessee Valley Authority, 941 F.2d 437 (6th Cir.1991), it is entitled to rely on reasonably rely on Dr. Cametas’ opinion. However, courts need not defer to an individual doctor’s opinion that is neither based on the individualized inquiry mandated by the ADA nor supported by objective scientific and medical evidence. Holiday, 206 F.3d at 645.

5

The Sixth Circuit has explained that this same

individual assessment must be made when there is a

determination that an individual poses a direct threat.

Holiday, 206 F.3d at 647 n. 4, citing 29 C.F.R. §

1630.2(r).

Overnite also cites to Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir.1998), wherein the Sixth Circuit stated that “[i]n deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned.” Id. at 807. Instead, “the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” Id.
The Court notes that both Bowman and Smith had operated forklifts without incident before applying for employment with Overnite. The Court also notes that Dr. Cametas did not ask Bowman about the frequency of his seizures, nor did he consult with Bowman or Smith’s treating physicians. Finally, the Court notes that Dr. Cametas does not consult scientific studies regarding the risks a person with epilepsy may pose in the workplace, but instead relies on his own personal judgment.
The Court concludes that Dr. Cametas’ testimony creates
7

Equal Employment Opportunity Com’n v. Overnite Transp. Co., Not Reported in...

a question of fact as to whether Bowman and Smith were qualified to perform the essential functions of the dockworker position. Accord Holiday, 206 F.3d at 645. In addition, the Court finds that there is a genuine issue as to whether Overnite reasonably relied upon the opinion of Dr. Cametas in deciding to not hire the Bowman and Smith.
Based on the foregoing, neither party is entitled to summary judgment on the EEOC’s ADA discrimination claims.
4. Motions in limine The parties have also filed motions in limine to exclude expert testimony under Fed.R.Evid. 703. Overnite argues that this Court should exclude the testimony of Regis C. Worley, the EEOC’s proposed engineering expert. EEOC argues that this Court should exclude the testimony of H. Frank Entwisle, Overnite’s proposed industrial safety expert. Both parties rely upon the Supreme Court’s decision in Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny. The Court will take both of these motions under submission.
5. Blanket exclusion based on DOT regulations *12 The EEOC also maintains that Overnite should be enjoined from relying on any DOT regulation or similar regulation which would operate as a blanket exclusion against hiring any individual with epilepsy or a clinical diagnosis of insulin-dependent diabetes mellitus into the position of dockworker. The EEOC admits that there is no evidence of such an individual being rejected from a dockworker position based upon diabetes, and therefore the EEOC is not seeking monetary relief for any such individual.
The Court finds that there is no evidence that Overnite relies solely upon any DOT regulation, or other similar regulation. It was Dr. Cametas testimony that he does not strictly follow the DOT regulations for dockworker positions. The EEOC has not presented any evidence that Dr. Cametas or Overnite rely on any similar regulations. Therefore, Overnite is entitled to summary judgment on this claim.

of two rejections over the course of several years does not establish a pattern of discrimination. Overnite argues that the EEOC lacks standing to raise a “pattern or practice” claim, particularly for the class of individuals with diabetes, as neither Bowman nor Smith have diabetes.
In order to make out a prima facie case of a pattern or practice of discrimination, a plaintiff must show that discrimination is the defendant’s “standard operating procedure-the regular rather than the unusual practice.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). A prima facie case based on indirect evidence requires “more than the mere occurrence of isolated or accidental or sporadic discriminatory acts.” Id. In Int’l Brotherhood of Teamsters, the government carried its burden by providing extensive evidence regarding a company’s 6,472-person workforce, comparing the demographics of that workforce to that of the population at large in the relevant labor markets. Id. at 337. The government also produced direct evidence of over forty instances of discrimination. Id. at 338.
The evidence in this case provides, at best, proof of sporadic and isolated discriminatory acts. Out of thousands of applicants for dockworking positions at Overnite, the EEOC has produced evidence that only two applicants suffering from epilepsy were rejected for employment. Further, although he did not disclose his condition before employment, John Spindler was permitted to continue working at Overnite even after Overnite became aware of his epilepsy. The EEOC has provided no direct evidence of a rule against hiring epileptics, and the indirect evidence is insufficient to support a prima facie case of a discriminatory pattern or practice at Overnite. Therefore, Overnite is entitled to summary judgment on the EEOC’s pattern or practice claim.
*13 Based on the foregoing, it is hereby ORDERED that: 1. Defendant’s Motion for Summary Judgment (Doc. 30) is GRANTED in PART and DENIED in PART;
2. Plaintiff’s Motion for Partial Summary Judgment (Doc. 31) is DENIED; and
3. Motions in limine to exclude expert testimony under Fed.R.Evid. 703 (Docs.29, 65) are TAKEN UNDER SUBMISSION.

6. Pattern or Practice of Discrimination The EEOC also argues that Overnite has a pattern of discriminating against epileptics because Overnite has employed only one other epileptic in recent years. Overnite argues it does not have a pattern of rejecting epileptics, as it currently employs one, and the existence

IT IS SO ORDERED.
Parallel Citations 18 A.D. Cases 573

8

Equal Employment Opportunity Com’n v. Overnite Transp. Co., Not Reported in...
	  
9

 
 CM/ECF LIVE - U.S. District Court:OHSD

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?457917028807987-L_5...

CLOSED, JURY
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:02-cv-00591-MHW-MRA

EEOC v. Overnite Transp Assigned to: Michael H. Watson Referred to: Mag. Judge Mark R. Abel Demand: $0 Cause: 28:451 Employment Discrimination Plaintiff Equal Employment Opportunity Commission
V. Defendant Overnite Transportation Company

Date Filed: 06/12/2002 Date Terminated: 04/14/2008 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Solvita A McMillan Equal Employment Opportunity Commission AJC Federal Office Building 1240 East Ninth Street Cleveland, OH 44199 216-522-7676 Email: solvita.mcmillan@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Matthew Roesch Dinsmore & Shohl - 1 255 E 5th Street Cincinnati, OH 45202 513-977-8200 Fax: 513-977-8178 Email: croesch@dinslaw.com ATTORNEY TO BE NOTICED
represented by Charles Matthew Roesch Dinsmore & Shohl - 1 1900 Chemed Center 255 E 5th Street Cincinnati, OH 45202 513-977-8200 Fax: 513-977-8178 Email: croesch@dinslaw.com LEAD ATTORNEY

1 of 9

4/22/2008 1:57 PM

CM/ECF LIVE - U.S. District Court:OHSD

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?457917028807987-L_5...
ATTORNEY TO BE NOTICED
Jay J Grytdahl McGuire Woods LLP - 1 77 W Wacker Drive Suite 4500 Chicago, IL 60651-1635 312-849-3699 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L Stewart McGuire Woods LLP - 2 Bank of America Tower 50 N Laura Street Suite 3300 Jacksonville, FL 32202-3661 TERMINATED: 02/24/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louise S Brock Dinsmore & Shohl - 1 255 E 5th Street Cincinnati, OH 45202 513-977-8200 Email: louise.brock@dinslaw.com ATTORNEY TO BE NOTICED

Date Filed 06/12/2002 10/10/2002
10/18/2002 10/22/2002
10/22/2002
10/25/2002
11/13/2002
12/20/2002

# Docket Text
1 COMPLAINT (referred to Mag. Judge Mark R. Abel ) (Entered: 06/14/2002)
2 STATUS REPORT by defendant Overnite Transp, plaintiff EEOC ( no pgs: 2) (sh) (Entered: 10/11/2002)
3 ANSWER by defendant () (bw) (Entered: 10/22/2002)
4 MOTION by defendant for admission of attorneys Stewart and Grytdahl to appear pro hac vice ( no pgs: ) (bw) Modified on 04/15/2003 (Entered: 10/23/2002)
Attorney Filing Fee for Stewart and Grytdahl Paid: on 10/22/02 in the amount of $ 100.00, receipt # 146959. (bw) (Entered: 10/23/2002)
5 NOTICE setting this action for Preliminary PTC 10:00 12/20/02 (cc: all counsel) (bw) (Entered: 10/25/2002)
6 NOTICE rescheduling the Preliminary PTC to 10:30 1/17/03 (cc: all counsel) (bw) (Entered: 11/13/2002)
7 Rule 26(f) Report of parties to Magistrate Judge (bw) (Entered: 12/26/2002)

2 of 9

4/22/2008 1:57 PM

CM/ECF LIVE - U.S. District Court:OHSD

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?457917028807987-L_5...

01/17/2003 01/22/2003
03/05/2003 03/17/2003 04/16/2003
04/16/2003 04/18/2003
04/21/2003 06/16/2003 06/23/2003 07/01/2003
08/25/2003 09/08/2003
09/17/2003 09/24/2003 10/14/2003

8 NOTICE OF TRIAL: Final Pretrial Conference set for 9:30 on 3/19/04 ; Trial set for 9:00 on 4/19/04 (cc: all counsel) (Entered: 01/17/2003)
9 PRELIMINARY PRETRIAL ORDER by Mag. Judge Mark R. Abel ; Preliminary pretrial conf was held on 1/17/03 a status report is due on 6-14-03 any motion to amend due by 3-1-03. () (cc: all counsel) (bw) (Entered: 01/23/2003)
10 MOTION by plaintiff for leave to file and amended complaint () (bw) (Entered: 03/05/2003)
11 ANSWER by defendant to the amended complaint (bw) (Entered: 03/18/2003)
12 ORDER by Judge James L. Graham granting defts motion for admission of attorneys Stewart and Grytdahl to appear pro hac vice [4-1] (cc: all counsel) ( no pgs: 1) (bw) (Entered: 04/16/2003)
13 ATTORNEY APPEARANCE co-counsel Louise Brock for defendant (bw) (Entered: 04/17/2003)
14 ORDER by Mag. Judge Mark R. Abel granting motion for leave to file and amended complaint [10-1] and deft answered on 3-17-03. (cc: all counsel) (bw) (Entered: 04/21/2003)
15 AMENDED COMPLAINT by plaintiff EEOC; jury demand (bw) (Entered: 04/21/2003)
16 STATUS REPORT by defendant Overnite Transp, plaintiff EEOC ( no pgs: 4) (pl) (Entered: 06/17/2003)
17 AMENDED STATUS REPORT by defendant Overnite Transp, plaintiff EEOC no pgs: 4) (pl) (Entered: 06/25/2003)
18 ORDER by Mag. Judge Mark R. Abel Trial rescheduled for 9:00 on 7/19/04, Final pretrial conf rescheduled to 9:30 on 6/15/04, Discovery ddl set on 11/30/03 and Mtn filing ddl set on 1/26/04 (cc: all counsel) ( no pgs: 2) (Entered: 07/02/2003)
19 MOTION by plaintiff to extend deadlines set in the 7-1-03 scheduling order () (bw) (Entered: 08/27/2003)
20 ORDER granting 19 Joint Motion to Extend certain deadlines set by 7/1/03 Amended Scheduling Order. The time for completing all non-expert discovery regarding Jeff Bowman's claim must be completed on or before October 31, 2003. Experts must be identified no later than September 20, 2003. Rule 26 (a)(2) expert disclosures must be made on or before October 30, 2003.. Signed by Judge Mark R. Abel on 9/8/03. (tto, ) (Entered: 09/08/2003)
21 MOTION by plaintiff for global extension of deadlines set in the 7-1-03 amended scheduling order. (bw) (Entered: 09/19/2003)
22 NOTICE by Defendant Overnite Transportation Company of disclosure of expert witnesses (bw) (Entered: 09/25/2003)
23 ORDER granting to the following extent 21 plaintiff EEOC's 9/17/03 Motion for Extension of the deadlines set in the 7/1/03 Amended Scheduling Order, except for the final pretrial conference and trial dates. All discovery must be completed by 1/16/04. Case-dispositive motions due 2/27/04. . Signed by Judge Mark R. Abel on 10/14/03. (tto, ) (Entered: 10/14/2003)

3 of 9

4/22/2008 1:57 PM

CM/ECF LIVE - U.S. District Court:OHSD

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?457917028807987-L_5...

10/14/2003 10/21/2003 02/20/2004 02/26/2004 03/03/2004 03/15/2004 03/15/2004 03/15/2004
03/15/2004
03/15/2004
03/16/2004 03/16/2004 03/16/2004

Set/Reset Deadlines: Discovery due by 1/16/2004. Motions due by 2/27/2004. (tto, ) (Entered: 10/14/2003)
24 NOTATION ORDER The Final Pretrial date in the 10/14/03 Order, document #23 is incorrect. The correct date of the Final Pretrial Conference should be 6/15/04 . Signed by Judge Mark R. Abel on 10/21/03. (tto, ) (Entered: 10/21/2003)
25 Joint MOTION for Extension of Time to File by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company. (McMillan, Solvita) (Entered: 02/20/2004)
26 ORDER Granting 25 Joint Motion for Extension of Time to File dispositive motions. Motions due 3/15/04. Signed by Judge Mark R. Abel on 2/26/04. (tto, ) (Entered: 02/26/2004)
27 MOTION for Leave to File Excess Pages by Plaintiff Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 03/03/2004)
28 ORDER Granting 27 Plaintiff's Motion for Leave to File its summary judgment memorandum in excess of twenty pages. Signed by Judge Norah McCann King on 3/15/04. (tto, ) (Entered: 03/15/2004)
29 MOTION in Limine to Exclude Testimony of Regis C. Worley, Jr. by Defendant Overnite Transportation Company. (Attachments: # 1 Exhibit A: Phelan case)(Roesch, Charles) (Entered: 03/15/2004)
30 MOTION for Summary Judgment by Defendant Overnite Transportation Company. Responses due by 4/8/2004 (Attachments: # 1 Affidavit Exhibit A: Thomas Affidavit# 2 Exhibit B: Coen case# 3 Exhibit C: Webster case# 4 Exhibit D: Schuler Dist. Ct. Case# 5 Exhibit E: Schuler App. Ct. Case)(Roesch, Charles) (Entered: 03/15/2004)
31 MOTION for Summary Judgment and Memorandum in Support of Motion for Partial Summary Judgment by Plaintiff Equal Employment Opportunity Commission. Responses due by 4/8/2004 (Attachments: # 1 Appendix)(McMillan, Solvita) (Entered: 03/15/2004)
32 AFFIDAVIT re 31 MOTION for Summary Judgment and Memorandum in Support of Motion for Partial Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit Personen Declaration Part 2# 2 Affidavit Personen Declaration part 3)(McMillan, Solvita) (Entered: 03/15/2004)
33 DEPOSITION of Thomas A. Blackstock, Jr. by Plaintiff Equal Employment Opportunity Commission and Defendant Overnite Transportation Company.(McMillan, Solvita) Modified on 3/16/2004 (bw). (Entered: 03/16/2004)
34 DEPOSITION of Philip A. Bowen by Plaintiff Equal Employment Opportunity Commission and Defendant Overnite Transportation Company. (McMillan, Solvita) Modified on 3/16/2004 (bw, ). (Entered: 03/16/2004)
35 DEPOSITION of Jeffery Bowman filed by Plaintiff Equal Employment Opportunity Commission and Defendant Overnite Transportation Company. (Attachments: # 1 Jeffery Bowman Dep. Part 2)(McMillan, Solvita) Modified on 3/16/2004 (bw) (Entered: 03/16/2004)

4 of 9

4/22/2008 1:57 PM

CM/ECF LIVE - U.S. District Court:OHSD

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?457917028807987-L_5...

03/16/2004 03/16/2004 03/16/2004 03/16/2004 03/16/2004 03/16/2004 03/16/2004 03/16/2004 03/16/2004 03/16/2004 03/16/2004 03/16/2004 03/16/2004

36 DEPOSITION of Craig Cairns, M.D. by Plaintiff Equal Employment Opportunity Commission and Defendant Overnite Transportation Company.(McMillan, Solvita) Modified on 3/16/2004 (bw, ). (Entered: 03/16/2004)
37 DEPOSITION of John G. Cametas, M.D. by Plaintiff Equal Employment Opportunity Commission and Defendant Overnite Transportation Company. (Attachments: # 1 John Cametas, M.D. Dep. Part 2)(McMillan, Solvita) Modified on 3/16/2004 (bw, ). (Entered: 03/16/2004)
38 DEPOSITION of Tim Caryle by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company.(McMillan, Solvita) Modified on 3/16/2004 (bw, ). (Entered: 03/16/2004)
39 DEPOSITION of H. Frank Entwisle, P.E. by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company.(McMillan, Solvita) Modified on 3/16/2004 (bw). (Entered: 03/16/2004)
40 DEPOSITION of James S. Grisolia, M.D. by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company. (Attachments: # 1 James Grisolia, M.D. Dep.Part 1)(McMillan, Solvita) Modified on 3/16/2004 (bw). (Entered: 03/16/2004)
41 DEPOSITION of Pamela Lewis by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company.(McMillan, Solvita) Modified on 3/16/2004 (bw, ). (Entered: 03/16/2004)
42 DEPOSITION of Michael D. Privitera, M.D. by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company. (Attachments: # 1 Michael D. Privitera, M.D. Dep. Part 1)(McMillan, Solvita) Modified on 3/16/2004 (bw, ). (Entered: 03/16/2004)
43 DEPOSITION of John Reed taken on October 29, 2003 by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company.(McMillan, Solvita) (Entered: 03/16/2004)
44 DEPOSITION of Carol Silvania taken on October 29, 2003 by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company.(McMillan, Solvita) (Entered: 03/16/2004)
45 DEPOSITION of Jeremy Smith taken on November 25, 2003 by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company.(McMillan, Solvita) (Entered: 03/16/2004)
46 DEPOSITION of John A. Spindler taken on January 27, 2004 by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company. (Attachments: # 1)(McMillan, Solvita) (Entered: 03/16/2004)
47 DEPOSITION of Kenneth Thomas taken on May 20, 2003 by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company.(McMillan, Solvita) (Entered: 03/16/2004)
48 DEPOSITION of Regis Worley, Jr. taken on December 18, 2003 by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company. (Attachments: # 1)(McMillan, Solvita) (Entered: 03/16/2004)

5 of 9

4/22/2008 1:57 PM

CM/ECF LIVE - U.S. District Court:OHSD

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?457917028807987-L_5...

03/16/2004 03/16/2004 03/26/2004 04/01/2004 04/01/2004
04/09/2004 04/12/2004 04/12/2004 04/12/2004
04/19/2004 04/26/2004

49 CORRECTED AFFIDAVIT of Teresa Personen re 31 MOTION for Summary Judgment and Memorandum in Support of Motion for Partial Summary Judgment, correcting 32 Affidavit, by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2)(McMillan, Solvita) Modified on 3/16/2004 (bw). Modified on 3/16/2004 (bw, ). (Entered: 03/16/2004)
50 AFFIDAVIT of James R Neely, Jr. re 31 MOTION for Summary Judgment and Memorandum in Support of Motion for Partial Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1)(McMillan, Solvita) Modified on 3/16/2004 (bw, ). (Entered: 03/16/2004)
51 Joint MOTION for Extension of Time to File Response/Reply by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company. (McMillan, Solvita) (Entered: 03/26/2004)
52 NOTICE of Final Pretrial Conference set for 6/18/2004 @9:30 AM before James L Graham and Jury Trial set for 7/19/2004 @9:00 AM in Courtroom 5 before James L Graham. (Attachments: # 1 # 2)(bw) (Entered: 04/01/2004)
53 ORDER Granting 51 Motion for Extend the time for responding to certain motions. Plaintiff EEOC memorandum in opposition to defendant Overnite Transportation Company's motion for summary judgment and defendant Overnite's memorandum in opposition to the EEOC's motion for partial summary judgment must both be filed by by 4/12/2004. The EEOC's memorandum in opposition to Overnite's motion in limine to exclude the testimony of Regis C. Worley, Jr. must be filed by 4/19/04. Signed by Judge Mark R. Abel on 3/31/04. (tto, ) (Entered: 04/01/2004)
54 MOTION for Leave to File Excess Pages Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 04/09/2004)
55 ORDER Granting 54 Plaintiff's Motion for Leave to File Excess Pages in their Memorandum Opposition to Defendant's Motion for Summary Judgment. Signed by Judge Mark R. Abel on 4/9/04. (tto, ) (Entered: 04/12/2004)
56 RESPONSE in Opposition re 31 MOTION for Summary Judgment and Memorandum in Support of Motion for Partial Summary Judgment filed by Defendant Overnite Transportation Company. (Roesch, Charles) (Entered: 04/12/2004)
57 RESPONSE in Opposition re 30 MOTION for Summary Judgment Plaintiff EEOC's Memorandum in Opposition to Defendant Overnite Transportation Company's Motion for Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit Affidavit of John D. Sargent in Support of Plaintiff EEOC's Memorandum in Opposition to Defendant Overnite Transportation Company's Motion for Summary Judgment# 2 Supplement unpublished opinion)(McMillan, Solvita) (Entered: 04/12/2004)
58 RESPONSE in Opposition re 29 MOTION in Limine to Exclude Testimony of Regis C. Worley, Jr. Memorandum in Opposition to Defendant Overnite Transportation Company's Motion in Limine filed by Plaintiff Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 04/19/2004)
59 REPLY to Response to Motion re 30 MOTION for Summary Judgment filed by Defendant Overnite Transportation Company. (Brock, Louise) (Entered: 04/26/2004)

6 of 9

4/22/2008 1:57 PM

CM/ECF LIVE - U.S. District Court:OHSD

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?457917028807987-L_5...

04/26/2004 04/26/2004
04/28/2004 04/30/2004 06/07/2004 06/07/2004 06/09/2004 06/10/2004 06/14/2004 06/28/2004 07/07/2004
07/12/2004 07/12/2004 08/06/2004

60 MOTION for Leave to File Excess Pages by Plaintiff Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 04/26/2004)
61 RESPONSE in Support re 31 MOTION for Summary Judgment and Memorandum in Support of Motion for Partial Summary Judgment Plaintiff EEOC's Reply Memorandum in Support of Its Motion for Partial Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 04/26/2004)
62 ORDER Granting 60 Plaintiff's Motion for Leave to File Reply Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment in Excess of twenty Pages . Signed by Judge Mark R. Abel on 4/27/04. (tto, ) (Entered: 04/28/2004)
63 RESPONSE in Support re 29 MOTION in Limine to Exclude Testimony of Regis C. Worley, Jr. filed by Defendant Overnite Transportation Company. (Roesch, Charles) (Entered: 04/30/2004)
64 MOTION to Continue Trial Date by Plaintiff Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 06/07/2004)
65 MOTION in Limine to Exclude Testimony of H. Frank Entwisle by Plaintiff Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 06/07/2004)
66 NOTICE of Appearance by Solvita A McMillan Plaintiff Equal Employment Opportunity Commission (McMillan, Solvita) (Entered: 06/09/2004)
67 ORDER granting 64 Motion to Continue the trial. The FPT is continued to September 17,2004 at 11:00 a.m. and the trial is continued to October 25, 2004, at 9:00 a.m. Signed by Judge James L Graham on 6/9/2004. (bw) (Entered: 06/10/2004)
68 MOTION for Leave to File Additional Authority in Support of Motion for Summary Judgment by Defendant Overnite Transportation Company. (Attachments: # 1 Exhibit Mohr Case)(Brock, Louise) (Entered: 06/14/2004)
69 RESPONSE in Opposition re 65 MOTION in Limine to Exclude Testimony of H. Frank Entwisle filed by Defendant Overnite Transportation Company. (Attachments: # 1 Exhibit Lichtenstein Case)(Brock, Louise) (Entered: 06/28/2004)
70 RESPONSE in Opposition re 68 MOTION for Leave to File Additional Authority in Support of Motion for Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit EEOC v. Watkins Motor Lines, June 15, 2004 Report and Recommendation# 2 Exhibit Mohr v. Hoover)(McMillan, Solvita) (Entered: 07/07/2004)
71 REPLY to Response to Motion re 68 MOTION for Leave to File Additional Authority in Support of Motion for Summary Judgment filed by Defendant Overnite Transportation Company. (Roesch, Charles) (Entered: 07/12/2004)
72 REPLY to Response to Motion re 65 MOTION in Limine to Exclude Testimony of H. Frank Entwisle filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 2 Exhibit)(McMillan, Solvita) (Entered: 07/12/2004)
73 MOTION for Leave to File Additional Authority by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Bouchard-v-AHP)(McMillan, Solvita) (Entered: 08/06/2004)

7 of 9

4/22/2008 1:57 PM

CM/ECF LIVE - U.S. District Court:OHSD

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?457917028807987-L_5...

08/13/2004 08/24/2004 09/14/2004 09/16/2004 10/06/2004 10/15/2004 10/25/2004 02/23/2005 03/30/2005 03/30/2005
05/17/2005 05/26/2005 05/26/2005 07/20/2005
05/26/2006

74 RESPONSE in Opposition re 73 MOTION for Leave to File Additional Authority filed by Defendant Overnite Transportation Company. (Brock, Louise) (Entered: 08/13/2004)
75 REPLY to Response to Motion re 73 MOTION for Leave to File Additional Authority filed by Plaintiff Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 08/24/2004)
76 Proposed Pretrial Order by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Joint# 2 Exhibit Plaintiff's# 3 Exhibit Defendant's)(McMillan, Solvita) (Entered: 09/14/2004)
77 ORDER continuing final pretrial date of September 17, 2004, and trial date of October 25, 2004, until decision on the motions for summary judgment still pending.Signed by Judge James L Graham on 09-16-04. (ws) (Entered: 09/16/2004)
78 ORDER REASSIGNING CASE to Judge Michael H. Watson for all further proceedings. Judge James L Graham no longer assigned to case. Signed by Judge James L Graham on 10/4/2004. (bw) (Entered: 10/06/2004)
79 ORDER to file status report. Signed by Judge Michael H. Watson on 10/15/04. (mhw1,dtg) (Entered: 10/15/2004)
80 STATUS REPORT JOINT by Plaintiff Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 10/25/2004)
81 NOTICE by Defendant Overnite Transportation Company of Robert L. Stewart's Withdrawal as Counsel (Brock, Louise) (Entered: 02/23/2005)
82 ORDER granting 73 Plaintiff's Motion for Leave to File additional authority in support of its motion in limine. Signed by Judge Mark R. Abel on 3/30/05. (jk) (Entered: 03/30/2005)
83 ORDER granting 68 Defendant's Motion for Leave to File additional authority in support of its motion for summary judgment and in opposition to Plaintiff's motion for partial summary judgment. Signed by Judge Mark R. Abel on 3/30/05. (jk) (Entered: 03/30/2005)
84 NOTICE of Hearing: Scheduling Conference set for 7/8/2005 at 01:30 PM in Room 322 before Michael H. Watson. (ba, ) (Entered: 05/17/2005)
85 ORDER re 84 Notice of Hearing Scheduling Conference set for 7/8/2005 has been reset to 7/20/2005 at 01:30 PM before Michael H. Watson. (ba, ) (Entered: 05/26/2005)
86 Mail Returned as Undeliverable (doc. 84). Mail sent to Jay J. Grytdahl (ph, ) (Entered: 05/31/2005)
87 Minute Entry for proceedings held before Judge Michael H. Watson : Scheduling Conference held on 7/20/2005. Court to rule on pending motions prior to setting a trial schedule; This matter to be referred for mediation prior to trial; calendar order to follow (ba, ) (Entered: 07/20/2005)
88 MOTION for Leave to File Additional Authority by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Rodriguez-v-ConAgra)(McMillan, Solvita) (Entered: 05/26/2006)

8 of 9

4/22/2008 1:57 PM

CM/ECF LIVE - U.S. District Court:OHSD

https://ecf.ohsd.uscourts.gov/cgi-bin/DktRpt.pl?457917028807987-L_5...

06/19/2006 06/20/2006 07/05/2006
04/27/2007 09/28/2007
02/08/2008 02/11/2008
02/29/2008 04/14/2008

89 RESPONSE in Opposition re 88 MOTION for Leave to File Additional Authority filed by Defendant Overnite Transportation Company. (Brock, Louise) (Entered: 06/19/2006)
90 ORDER granting 88 Motion for Leave to File. Signed by Judge Michael H. Watson on 6/20/2006. (kw, ) (Entered: 06/20/2006)
91 ORDER taking under advisement 29 and 65 parties' Motions in Limine, granting in part and denying in part 30 Defendant's Motion for Summary Judgment, denying 31 Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Michael H. Watson on 7/5/2006. (kw, ) (Entered: 07/05/2006)
92 ORDER denying Defendant's 29 Motion in Limine and denying Plaintiff's 65 Motion in Limine. Signed by Judge Michael H. Watson on 4/27/2007. (kw) (Entered: 04/27/2007)
93 SCHEDULING ORDER: Settlement Conference set for 2/5/2008 at 10:00 a.m.; Final Pretrial Conference set for 3/4/2008 at 10:00 a.m.; and Jury Trial set for 3/31/2008 at 9:30 a.m. before Judge Michael H. Watson. Signed by Judge Michael H. Watson on 9/28/2007. (kw) (Entered: 09/28/2007)
94 Joint MOTION for Extension of Time New date requested 2/19/2008. by Defendant Overnite Transportation Company. (Brock, Louise) (Entered: 02/08/2008)
95 ORDER granting 94 Motion for Extension of Time. The parties shall have until 2/19/08 to submit statement of witnesses, designation of deposition portions, exhibit lists, exchange of proposed jury instructions, and pretrial motions. Signed by Mark R. Abel on 2/11/08. (jcw) (Entered: 02/11/2008)
96 Joint MOTION to Approve Consent Judgment by Plaintiff Equal Employment Opportunity Commission, Defendant Overnite Transportation Company. (Attachments: # 1 Proposed Consent Decree) (Roesch, Charles) (Entered: 02/29/2008)
97 CONSENT DECREE. Signed by Judge Michael H. Watson on 4/14/08. (jk) (Entered: 04/14/2008)

PACER Service Center

Transaction Receipt

04/22/2008 14:55:40

PACER

wu0079 Client

eeoc

Login:

Code:

Description:

Docket Report

Search Criteria:

2:02-cv-00591-MHW-MRA

Billable Pages:

6

Cost:

0.48

9 of 9

4/22/2008 1:57 PM