E.E.O.C. v. Jack of All Trades Personnel Services, Inc., Not Reported in F.Supp.2d (2004)

2004 WL 1217943 United States District Court, N.D. Texas, Dallas Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
JACK OF ALL TRADES PERSONNEL SERVICES, INC., Defendant.
No. Civ. 3:04–CV–0338–H. | June 1, 2004.
Attorneys and Law Firms
Ronetta J. Francis, Equal Employment Opportunity Commission Dallas District Office, Dallas, TX, for Plaintiff.
John B. Brown, Gardere Wynne Sewell, Dallas, TX, John T. Hawkins, Naman Howell Smith & Lee, Waco, TX, for Defendant.
Opinion
MEMORANDUM OPINION AND ORDER
SANDERS, Senior J.
*1 Before the Court are Defendant’s Motion to Dismiss for Improper Venue, filed April 13, 2004, and the response and the reply thereto. Defendant alternatively moves for a change of venue pursuant to 28 U.S.C. § 1404(a). For the following reasons, Defendant’s motion to dismiss is DENIED, and Defendant’s motion for change of venue is GRANTED.
I. Background Defendant Jack of All Trades Personnel Services, Inc. (“JOAT”) provides businesses with temporary employees. On February 17, 2004, Plaintiff Equal Employment Opportunity Commission (“EEOC”) brought suit in this Court on behalf of Marci Cudmore and other similarly situated individuals, alleging that JOAT required Ms. Cudmore and the other individuals to take a physical examination prior to an offer of employment and relied on

the results of the physical examination to deny them employment. (P.’s Compl. at 3.) The instant motion ensued.
II. Legal Standards
A. Special Venue Provisions Congress has established special venue provisions for cases arising under Title VII and the Americans with Disabilities Act (“ADA”). See In Re: Horseshoe Entertainment, 337 F.3d 429, 432 (5th Cir.2003). Specifically, Title VII/ADA cases
may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office.
42 U.S.C. § 2000e–5(f)(3). Although a plaintiff’s choice of forum is a factor to consider in determining venue, “the plaintiff’s choice of forum must be one which is permitted under the relevant venue statute.” In Re: Horseshoe Entertainment, 337 F.3d at 434–35. Finally, any transfer of a Title VII/ADA case due to improper venue must still meet the requirements set forth in 28 U.S.C. § 1404 or § 1406. See id. at 433. See also 42 U.S.C. § 2000e–5(f)(3) (referring expressly to § 1404 and § 1406).
B. Change of Venue Section 1404(a) provides that “[f]or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). Because the plaintiff has the privilege of determining venue, the burden is on the defendant “to
1

E.E.O.C. v. Jack of All Trades Personnel Services, Inc., Not Reported in F.Supp.2d (2004)

demonstrate why the forum should be changed.” Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966). In determining whether a transfer of venue is appropriate under § 1404(a), a district court should consider:
the convenience of the parties and witnesses, the availability of process to compel the presence of unwilling witnesses, the cost of obtaining the presence of witnesses, the relative ease of access to sources of proof, calendar congestion, where the events in issue took place, and the interests of justice in general.
*2 Burlington Northern & Sante Fe Ry. Co. v. Herzog Services, Inc., 990 F.Supp. 503, 504 (N.D.Tex.1998). Transfer of venue pursuant to § 1404(a) is within the discretion of the district court and will not be disturbed on appeal absent an abuse of discretion. See Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir.1989).
III. Analysis As noted above, JOAT moves to dismiss the instant suit for improper venue or, alternatively, for change of venue pursuant to § 1404(a). As an initial matter, the Court concludes that venue is not improper in the Northern District of Texas because a Title VII/ADA case “may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed.” 42 U.S.C. § 2000e–5(f)(3). Thus, because the EEOC alleges that JOAT committed unlawful employment practices in Texas, JOAT’s motion to dismiss for improper venue must be DENIED.
Nonetheless, the Court concludes that this case should be transferred to the United States District Court for the Western District of Texas, Waco Division, pursuant to § 1404(a). Because the alleged “unlawful employment practice” occurred in Waco, Texas, the Western District of Texas, Waco Division, is a district and division where this case “might have been brought” for purposes of § 1404(a). 28 U.S.C. § 1404(a). In determining the convenience of the parties and witnesses, as well as the interest of justice, the Court notes that JOAT is based in Waco, Texas, and has never maintained an office in any other location. (D.’s Ex. A.) JOAT’s president and owner,

Helen Underwood, resides in Waco, as does JOAT’s account manager, Joyce Smith. (Id.) Most of JOAT’s business customers are located in McLennan County, Texas, the county in which Waco is located, and all of JOAT’s business records are maintained in Waco. (Id.) Finally, the alleged victim–––Marci Cudmore—resides in Hillsboro, Texas, which is located in the Western District of Texas, Waco Division. (D.’s Ex. 1, 2.)
The EEOC contends that a change of venue would not be appropriate because such a change would amount to shifting the inconvenience of the litigation from JOAT to the EEOC. (P.’s Resp. at 7.) Specifically, the EEOC contends that it would be inconvenient to litigate this case in the Western District of Texas because its district office, investigator, and files are all located in Dallas. (Id.) However, the EEOC has intentionally organized itself to pursue its interests in McLennan County, including Waco, through its Dallas District Office. See 42 U.S.C. § 2000e–4(f) (“The Commission may establish such regional or State offices as it deems necessary to accomplish the purpose of this subchapter.”); EEOC, Dallas District Office, Jurisdictional Area, available at http:// www.eeoc.gov/dallas/area.html (n.d.). See also EEOC v. Icon Ben. Adm’rs, Inc., No. EP–02–CA–527–DB, 2003 WL 748268, at *3 (W.D.Tex. Feb.10, 2003) (“[The EEOC] would not be imposed upon by having to litigate in [the Northern District of Texas, Lubbock Division,] in which it is intentionally organized to appear through its office in El Paso.”). Thus, the EEOC’s contention is without merit.
*3 Accordingly, JOAT’s alternative motion for change of venue is GRANTED.
IV. Conclusion For the foregoing reasons, JOAT’s motion to dismiss is DENIED, and JOAT’s alternative motion for change of venue is GRANTED. Accordingly, for the convenience of the parties and witnesses, and in the interest of justice, this case is hereby TRANSFERRED to the United States District Court for the Western District of Texas, Waco Division, pursuant to 28 U.S.C. § 1404(a).
SO ORDERED.
	  

2

E.E.O.C. v. Jack of All Trades Personnel Services, Inc., Not Reported in F.Supp.2d (2004) 3

 
 ,
!

Case 6:04-cv-00157-WSSM Document 9 Filed 02/09/2005 Page 1 of 11

PILED

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

FEB 0 9 2005

WACO DIVISION

CLERK, U.S. DISTRICT COURl ~;STERN O~T OF TEXA!

!"'I!=f' lTV ("" f'1:"

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
JACK OF ALL TRADES PERSONNEL SERVICES, INC.,
Defendant.

) )
) CIVIL ACTION NO.
)
) WA:04-CV-157
) ) ) ) ) ) )

CONSENT DECREE

THIS CONSENT DECREE is made and entered into by and between the Plaintiff, Equal

Employment Opportunity Commission ("EEOC"), and the Defendant, Jack of All Trades

Personnel Services, Inc. (''Defendant'' or "JOAT"), in the United States District Court tor the

Western District of Texas, Waco Division, with regard to the EEOC's Complaint, filed on

February 17, 2004 ("the Complaint"), in Civil Action No. WA:04-CV-157. This Complaint was

based upon Charge ofDiscrimination filed by Charging Party Marci Cudmore against Defendant

employer.

The above-referenced Complaint alleged that the Defendant lOAT violated Title I of the

Americans with Disabilities Act of 1990 and Title I ofthe Civil Rights Act of 1991, when it

engaged in a pattern and practice of discriminating against Marci Cudmore and a class of

similarly-situated aggrieved individuals by subjecting them to unlawful pre-employment medical

CONSENT DECREE

1

, ,

Case 6:04-cv-00157-WSSM Document 9 Filed 02/09/2005 Page 2 of 11

inquiries and examinations and by unlawfully relying upon the results thereof as a basis to deny hire.
The EEOC and the Defendant agree to compromise and settle the differences embodied in the Complaint, and intend that the terms and conditions of the compromise and settlement be set forth in this Consent Decree ('"Consent Decree"). It is understood and agreed that this Consent Decree is in compromise of disputed claims, and that this Consent Decree shall not in any way be construed as an admission by Defendant Jack ofAll Trades Personnel Services. Inc. of a violation of any federal, state. or local statute, law or regulation, or a violation of any right ofthe aggrieved individuals or any other person.
NOW, THEREFORE, in consideration ofthe mutual promises and agreements set forth herein, the sufficiency of which is hereby acknowledged, the parties agree as follows, the Court finds appropriate and therefore, it is ORDERED, ADJUDGED AND DECREED that:
1. This Consent Decree resolves all issues raised in EEOC Charge No. 310 AO 8105. EEOC Charge No. 310 AO 8052 has been administratively closed. This Decree further resolves all issues in the Complaint filed by the EEOC in this civil action. The EEOC waives further claims and/or litigation on all issues raised in the above-referenced Charge and Complaint. The EEOC does not waive processing or litigating charges other than the above-referenced Charge.
2. Defendant agrees not to discriminate on the basis of disability with respect to recruitment, hiring, termination, or any other employment action, and Defendant further agrees not to retaliate in any way against any person because of opposition to any practice declared unlawful under the ADA or because ofthe filing of a charge, giving testimony, or assisting or participating in any manner in any investigation, proceeding or hearing.

CONSENT DECREE

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Document 9

Filed 02/09/2005 Page 3 of 11

3. Defendant agrees that its hiring and medical examination processes will comply

with the provisions of the Americans with Disabilities Act. For purposes of this Consent Decree,

an "offer" of employment occurs when the staffing finn or temporary employment agency worker

is given an assignment for a particular date with a particular client. The "offer" is typically made

after the staffing firm or temporary employment agency has obtained and evaluated all non-

medical information reasonably necessary to its hiring and placement decision.

a. Defendant agrees that it will not make disability-related inquiries of applicants or

require applicants to submit to a medical examination prior to being offered an

assignment.

b. Defendant agrees that all disability-related inquiries or medical examinations shall

be done or conducted: (l) as part of a non-discriminatory practice, applied to all

employees or to all employees in a specific group that is not based on disability; or

(2) if necessary, to determine whether an employee can perform the essential

functions of a specific job with or without a reasonable accommodation.

Defendant agrees that disability-related inquiries and medical examinations will not

be made or conducted of persons assigned to clerical positions, unless the job

description for the specific clerical position has a lifting or other physical

requirement.

c. Defendant agrees that all medical examinations, which are to be conducted only

after the employee has been offered an assignment, will be performed by a qualified

professional.

d. Defendant agrees that before an offer is withdrawn, based solely on the results of a

CONSENT DECREE

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Document 9

•Filed 02/09/2005

Page 4 of 11

post-offer medical examination, it will ascertain that the exclusionary requirement

is job-related and consistent with business necessity, and that no reasonable

accommodation exists that would enable the employee to meet the assignment' s

requirements, without posing an undue hardship.

4. Defendant also agrees to comply with Section 102(d)(3)(B) of the Americans with

Disabilities Act, which requires that information obtained regarding the medical condition or

history ofthe employee should be maintained on separate forms and in separate medical files and

treated as confidential medical information.

5. Defendant agrees that during the application process, it will provide a reasonable

accommodation to any applicant with a disability who requests one unless to do so would impose

an undue hardship.

6. Defendant agrees that during the year 2005, one or more of its managers shall

attend a national training conference (such as Job Accommodation Network's Annual Conference

or National ADA Symposium & Expo) that specifically includes training and information relating

to employment of persons with disabilities and the Americans With Disabilities Act.

7. Defendant agrees to conduct annual training for those employees working in the

JOAT office, including supervisors, managers and hourly workers, advising them ofthe

requirements and prohibitions ofthe Americans with Disabilities Act. Specifically, the training

will inform the employees ofthe proper procedure by which to request a reasonable

accommodation, and will detail Defendant's obligation to provide the requested reasonable

accommodation, providing an explanation and examples of undue hardship. The training will also

inform the employees ofthe complaint procedure for those individuals who believe they have

CONSENT DECREE

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experienced discrimination because of their disability. Further, the training \\-ill advise employees.

including supervisors and managers. of the consequences ofviolating the ADA. The training shall

be at least two hours in duration. No less than 10 days before the training is conducted.

Defendant agrees to give written notice to the EEOC as to the date and location of the training,

the name ofthe person providing the training and the substance of the training.

8. Defendant agrees to forward to the EEOC copies of all complaints alleging

discrimination on the basis of disability, either against Defendant or any of Defendant's client-

employers, which are made by JOAT employees and received by JOAT, including a report

evidencing Defendant's investigation of the complaints and the remedial action taken, ifany.

9. Defendant agrees to provide the EEOC with a list of all persons rejected for

placement in any temporary position based on a medical screening or examination but not

including a drug test, during the one-year period from the date this Consent Decree is signed by

the Judge. For each person identified. Defendant agrees to provide: (a) the person's application;

(b) all JOAT documents relating to the person's application, interview or hiring process at JOAT;

(c) a list of all positions for which each person was rejected; and (d) any and all reasons why the

person was rejected for hire for each position.

10. Defendant authorizes the EEOC to review any and all employment application

materials received \\-ithin two years from the date ofthis Consent Decree.

11. Within ten (10) days after the date of this Consent Decree, Defendant shall post a

notice, attached as Attachment A in prominent and conspicuous locations throughout its facility,

informing its employees and applicants oftheir employment rights pursuant to the Americans with

Disabilities Act. Defendant will thereafter report to the Commission that it has complied with

CONSENT DECREE

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Document 9

Filed 02/09/2005 Page 6 of 11

this requirement within fourteen (14) days after posting the notice. The notice shall also inform

employees where to report if a reasonable accommodation is needed. and where to report

violations of the Americans \\lith Disabilities Act, the name of the designated company official to

whom they should report said requests for reasonable accommodation and violations, along with

the address and telephone number of the Dallas District Office of the EEOC. The notice shall

remain posted for two years from the date of this Consent Decree.

12. Defendant agrees to distribute a copy ofthe Notice within 60 days of the date of

this Consent Decree to each of the temporary employees on its payroll, as an attachment to the

employees' paycheck. Defendant further agrees to include the Notice as part of its application

paperwork packet for both new applicants and those employees returning to update their

application information for two years from the date of this Consent Decree.

13. Defendant agrees to pay the gross sum of$154,224.00 to resolve all claims for all

damages. From this gross payment, Marci Cudmore and each of the identified aggrieved

individual will receive $ 8568.00, of which $1125.60 will be considered as back pay damages and

$7442.40 will be considered as compensatory damages. Within twenty~one (21) days ofthe entry

of this Consent Decree, Marci Cudmore and each ofthe identified aggrieved individuals will

submit a current IRS Form W-4 to Defendant. Within twenty-one (21) days of Defendant's

receipt ofthe completed W-4 Form. Defendant will issue a check, made payable to each

aggrieved individual, in the above-referenced amounts, less required withholdings.

14. The payments referenced above, shall be made by check with a copy ofthe

checks sent to EEOC attorney Ronetta J. Francis, 207 S. Houston Street, Third Floor, Dallas,

Texas 75202.

CONSENT DECREE

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Document 9

Filed 02/09/2005 Page 7 of 11

15. All reports to the EEOC required by this Decree shall be sent to Ronetta 1.

Francis, Senior Trial Attorney. EEOC, 207 S. Houston, Third Floor, Dallas. Texas 75202.

16. If Defendant fails to tender payment or otherwise fails to timely comply with the

terms above, Defendant shall:

a. Pay interest at the rate calculated pursuant to 26 U.S.c. Section 6621(b)

on any untimely or unpaid amounts from date of non-compliance; and

b. Bear any additional costs incurred by the EEOC caused by the non-

compliance or delay ofthe Defendant.

17. Neither the EEOC, nor the Defendant shall contest the validity of this Consent

Decree nor the jurisdiction of the federal district court to enforce this Consent Decree and its

terms or the right of either party to the Consent Decree to bring an enforcement action upon

breach of any term of this Consent Decree by either such party. Nothing in this Decree shall be

construed to preclude the EEOC from enforcing this Decree in the event that Defendant Jack of

All Trades Personnel Services, Inc. fails to perform the promises and representations contained

herein. The EEOC shall be authorized to seek compliance with the Consent Decree through civil

action in the United States District Court.

18. The term ofthis Decree shall be for three (3) years.

19. The parties to this Consent Decree agree to bear their own attorney's fees and

costs associated with the above-referenced Complaint.

_'7..1..- SO ORDERED, ADJUDGED AND DECREED this

1 _

day of -;t~

2005.

U.S. DISTRICT COURT JUDGE

CONSENT DECREE

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• Case 6:04-cv-00157-WSSM

Document 9

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Page 8 of 11

AGREED AS TO FORM AND SUBSTANCE:

3~ Signed this dayof ~A'2005.

&;;fH2 :& FOR THE PLAINTIFF:

{(Ii{]

ROBERT A. CAJfINO

Regional Attorney

Oklahoma State Bar No. 011782

SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
~c4f RONE A J. F CIS Senior Trial Attorney Virginia Bar No. 39886

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street Third Floor Dallas, Texas 75202 Tel No. (214) 253-2746 Fax No. (214) 253-2749

CONSENT DECREE

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FOR THE DEFENDANTS:
Ai
Dougl D. Haloftis Texas State Bar No. 00 804400

John B. Brown Texas State Bar No. 00793412 GARDERE WYNNE SEWELL, L.L.P. 1601 Elm Street, Suite 3000 Dallas, Texas 75201 (214) 999-3000 (214) 999-4667 (FAX)

Jo . Hawkins State Bar No. 09249300
NAMAN, HOWELL, SMITH & LEE P.O. Box 1470 Waco, Texas 76703-4100 (254) 755-4100 (254) 754-6331 (FAX)

CONSENT DECREE

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Page 10 of 11

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Dallas District Office

207 S. Houston Street, 3,d Floor
Dallas, TX 75202-4726 (214) 253-2700
TTY (214) 253-2710 FAX (214) 253-2720 EEOC Website: www.eeoe.gov

NOTICE OF EMPLOYEE RIGHTS UNDER THE AMERICANS WITH DISABILITIES ACT

This notice is being posted pursuant to a Consent Decree entered into between Jack of All Trades Personnel Services, Inc. ("JOAT"), and the Equal Employment Opportunity Commission, based upon a Charge ofDiscrimination alleging disability discrimination under the Americans with Disabilities Act ("ADA").

An employer cannot discriminate against qualified applicants and employees on the basis of disability. Under the Americans With Disabilities Act, an individual with a disability is a person who has (a) a physical or mental impairment that substantially limits one or more major life activities; (b) a record ofan impairment or (c) is regarded as having such an impairment. The ADA also prohibits discrimination against a person because oftheir association or relationship with an individual with a known disability. This prohibition covers all aspects ofthe employment process, including:

* application * testing * hiring * assignments * evaluation
* disciplinary actions

* promotion * medical examinations * layoff/recall * termination * compensation * leave

JOAT states that it will comply with the Americans with Disabilities Act by not making disability-related inquiries of applicants or requiring applicants to submit to a medical examination prior to being offered an assignment. JOAT represents that all disability-related inquiries or medical examinations, will be conducted only after the employee has been offered an assignment. JOAT agrees that the disability-related inquiries or medical examinations must be administered to all entering employees in the same job category.

• JOAT agrees that all medical examinations, conducted after the employee has been offered an assignment, must be conducted by a qualified professional.

• JOAT agrees that before an offer of employment is withdrawn, based solely on the results of a post-offer medical examination, it will ascertain that the exclusionary requirement is job-related and consistent with business necessity, and that no reasonable accommodation exists that would enable the employee to meet the assignment's requirements, without posing an undue hardship.

Further, under the ADA, an employer must make a reasonable accommodation to the known

ATTACHMENT A

• Case 6:04-cv-00157-WSSM

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Page 11 of 11

physical or mental limitations ofa qualified applicant or employee with a disability unless it can show that the accommodation would cause an undue hardship on the operation of its business. Some examples ofreasonable accommodation include:
• making existing facilities used by employees readily accessible to, and usable by, an individual with a disability;
• job restructuring; • modifying work schedules; • reassignment to a vacant position; • acquiring or modifYing equipment or devices; or • providing qualified readers or sign language interpreters
Each supervisor has a responsibility to maintain a workplace free ofdiscrimination. This duty includes notifYing all employees of the JOAT EEO policy and assuring them that they are not to endure unequal treatment because oftheir race, color, sex, national origin, religion, age or disability, and reporting incidents involving discrimination. Retaliation against individuals who raise concerns of discrimination is strictly prohibited.
An employee has the right, and is encouraged to exercise that right to report allegations of discrimination in the workplace. An employee may do so by notifYing either OwneriProprietor Helen Underwood or the Account Manager Joyce Smith at(:l5~) '75lJ.-f19q1~ Supervisors and managers who are informed of a complaint or allegation of discrimination must immediately notifY either OwneriProprietor Helen Underwood or the Account Manager Joyce Smith.
Any report of discrimination will be thoroughly investigated, with appropriate disciplinary action, up to and including termination, be taken against any person(s) found to have engaged in such conduct.
An employee, either alternatively or in addition to reporting such an allegation to JOAT officials, may contact the Equal Employment Opportunity Commission for the purposes of filing a charge ofemployment discrimination. The address and telephone number ofthe nearest EEOC office is 207 South Houston Street, Third Floor, Dallas, Texas 75202; (214) 253-2700.

-:;:1- 3- 05
Date

Trades Personnel Services, Inc.

 
 e ~JS 44 (Rev 3/99)Case 3:04-cv-00338-H DCocIuVmILenCt 1OVFEileRd 0S2H/1E7E/0T4 Page 1 of 6 PageID 1

The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as reqUired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use ofthe Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

eEl VED I. (a) PLAINTIFFS EQUAL EMPLOYMENT OPPORTUNITY C DMMISRtt

T EFENDANTS J f\CK OF ALL TRADES PERSONNEL SERVICES, INC.

(b) County of ReSIdence of First Listed Plaintiff

FEI. 7 2OU4

C unty of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTI FCA ES)

(IN U.S. PLAINTIFF CASES ONLY)

CLERK, U.S. DISTRICT COUR

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

I NORTHERN DISTRICT OF TEX S

LAND INVOLVED.

(c) Attorney's (Firm Name, Address, and Telephone Number)
RONETTA J. FRANCIS, SENIOR TRIAL ATTORNEY
EEOC-Dallas District Office
207 South Houston, 3"' Floor Dallas, Texas 75202 (214) 253-1.746

Attorneys (If Known)

1t

rs - 3R 0 .:1 T, r""' ~

,. H

II. BASIS OF JURISDICTION (place an "X" in One Box Only)

I U.S. Government Plaintiff

03 Federal QuestIOn
(U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL P ARTIES(Place an "X" in One Box for Plamtlff

(For DiveTSlty Cases Only)

and One Box for Defendant)

Citizen of This State

PTF DEF
01 01

PTF DEF

o Incorporated or Pnncipal Place

4 04

of Business In This State

02 U.S. Government

04 Diversity

o Citizen of Another State 02 02 Incorporated and Principal Place 5 05

Defendant

(Indicate Citizenship of Parties in Item III)

of Busmess In Another State

CItizen or Subject of a 03 03 Foreign Nation

o 6 06

Foreilm CountrY

IV. NATURE OF SUIT (Place an "X" in One B x Only)

CONTRACT

TORTS

FORFEnnuRE~ENALTY

BANKRUPTCY

OTHER STATUTES

0 110 Insurance

PERSONAL INJURY

PERSONAL INJURY 0

0 120 Manne

0 310 Airplane

0 362 Personal Injury- 0

0 130 MIller Act

0 315 Airplane Product

Med. Malpractice 0

0 140 Negotiable Instrument

Ltabihty

0 365 Personal Injury-

0 150 Recovery of Overpayment 0 320 Assault, Libel &

Product Liabihty

0

& Enforcement of Judgment

Slander

0 368 Asbestos Personal 0

0 151 MedIcare Act

0 330 Federal Employers'

Injury Product

0

0 152 Recovery of Defaulted

Liabihty

Liability

0

Student Loans

0 340 Marine

PERSONAL PROPERTY

(Excl. Veterans)

0 345 Marine Product

0 370 Other Fraud

0

0 153 Recovery of Overpayment

Liability

0 371 Truth m Lending

of Veteran's Benefits 0 350 Motor Vehicle

0 380 Other Personal

0 160 Stockholders' SUits 0 190 Other Contract

0 355 Motor VehIcle Product Liablhty

Property Damage 0 385 Property Damage

0

0 195 Contract Product Liabihty 0 360 Other Personal Injury

Product Liability

0

REAL PROPERTY
0 210 Land Condemnation 0 220 Foreclosure

CIVIL RIGHTS
0 441 Votmg X 442 Employment

PRISONER PETITIONS 0

0 510 Motions to Vacate

Sentence

0

0 230 Rent Lease & Ejectment 0 443 HOUSing!

0 240 Torts to Land

Acco11l11lodations

0 245 Tort Product Liability 0 444 Welfare

0 290 All Other Real Property 0 440 Other CiVIl Rights

Habeas Corpus'

0 530 General

0

0 535 Death Penalty

0 540 Mandamus & Other 0

0 550 Civil Rights

0 555 Pnson Condition

610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure
of Property 21 USC 630 Liquor Laws 640 R.R. & Truck 650 Airhne Regs. 660 OccupatIonal
SafetylHealth 690 Other

0122 Appeal 28 USC 158
0123 Withdrawal 28 USC 157
PROPERTY RIGHTS
[820 Copyrights [830 Patent [840 Trademark

LABOR

SOCIAL SECURITY

710 Fair Labor Standards [861 HIA (J395fl)

Act

[862 Black Lung (923)

720 LaborlMgmt Relations [863 DIWCIDIWW (405(g»
[864 ssm Title XVI

730 LaborlMgmtReporting []65 RSI (405(g»

& Disclosure Act

740 Railway Labor Act

FEDERAL TAX SUITS

790 Other Labor Litigation

[]70 Taxes (U.S. PlamtIff or Defendant)

791 Empl. Ret. Inc. Security Act

[]7l IRS-Third Party 26 USC 7609

o 400 State Reapportionment o 410 Antitrust o 430 Banks and Banking o 450 C011l11lerce/ICC Rates/etc o 460 Deportation o 470 Racketeer Influenced and
Conupt OrgamzatlOns
o 810 Selective Service o 850 Securities/Co11l11lodltIes/
Exchange
o 875 Customer Challenge
12 USC 3410
o 891 AgncuJtural Acts o 892 ECOnOlTIlC Stabilization Act
0 893 EnVIronmental Maners
o 894 Energy AliocatlOn Act o 895 Freedom of
Information Act
o 900 Appeal of Fee
Detenrunation Under Equal
Access to Justice
o 950 Constitutionahty of
State Statutes
o 890 Other Statutory Actions

V. ORIGIN
XI Original Proceeding

(PLACE AN "X" IN ONE BOX ONLY)

0 2 Removed from
State Court

0 3 Remanded from
Appellate Court

Transferred from another distnct
0 4 Reinstated or 0 5 (specify)
Reopened

o 6 Multidistrict
litigatIOn

Appeal to District Judge from
o 7 Magistrate Judgment

VI. CAUSE OF ACTION

(Cite the U.S: C.iVII Statute under wluch you are.filing and write brief statement of cause. Do not Cite junsdlctlonal statutes unless diversity.)

This cause of action is brought pursuant to Title I of the Amencans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis proVIde

relief to Marci Cudmore and a class ofsinularyl-sltuated aggneved individuals, who were adversely affected by such parties. This action is authorized and mstItuted pursuan to Section 107(a) of the ADA

Of 1990, 42USCI2117(a) reference Section 706(1) & (3) and Section 707 ofTitle VII ofClVl1 Rights Act of 1964, as amended, 42 USC 2000e-5(f)(1), (3) 2000e-6 and Section 102 of Civl Rights 1991

VII. REQUESTED IN COMPLAINT:

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

DEMAND $

CHECK YES only if demanded in complaint:

JURY DEMAND:

XYes 0 No

VIII. RELATED CASE(S) ;~::uctionS):
IF ANY

JUDGE

DOCKET NUMBER

SIGNATURE OF ATTO
M1~.

RECEIPT # _ _ _ __ AMOUN _ _ _ _ _ __ APPLYING IFP _ _ _ _ _ __

JUDGE _ _ _ _ _ __ MAG JUDGE ______________

Case 3:04-cv-00338-H Document 1 Filed 02/17/04 Page 2 of 6 PageID 2
\~

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

JACK OF ALL TRADES PERSONNEL

)

SERVICES, INC.,

)

)

Defendant.

)

------------------------------------~)

---------
304CV-338-H
CIVIL ACTION NO. COMPLAINT
JURY TRIAL DEMAND

NATURE OF THE ACTION

This 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 Marci Cudmore and a class of similarly-situated aggrieved

individuals, who were adversely affected by such practices. The Commission alleges that

Defendant, Jack of All Trades Personnel Services, Inc. (hereafter "Defendant"), engaged in a

pattern and practice of discriminating against Marci Cudmore and a class of similarly-situated

aggrieved individuals by subjecting them to unlawful pre-employment medical inquiries and

examinations and by unlawfully relying upon the results thereof as a basis to deny hire.

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

COMPLAINT

1

( ..
Case 3:04-cv-00338-H Document 1 Filed 02/17/04 Page 3 of 6 PageID 3
Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference Section 706(1) and (3) and Section 707 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f)(1), (3) 2000e-6 ("Title VII"), 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 being committed within the jurisdiction of the United States District Court for the Northern District of Texas.
PARTIES 3. Plaintiff, Equal Employment Opportunity Commission ( "Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, which incorporates by reference Section 706(1) and (3) and Section 707 of Title VII. 4. At all relevant times, Defendant has continuously been and is now doing business in the state of Texas and has continuously had at least fifteen employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C. § 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Section 701(g) and (h) of Title VII, 42 U.S.c. § 2000e(g) and (h). 6. At all relevant times, Defendant has continuously been a covered entity under Section 101(2) ofthe ADA, 42 U.S.C. § 12111(2).

COMPLAINT

2

Case 3:04-cv-00338-H Document 1 Filed 02/17/04 Page 4 of 6 PageID 4

STATEMENT OF CLAIMS

7. More than thirty days prior to the institution of this lawsuit, Marci Cudmore filed

a Charge of Discrimination with the Commission alleging violations of Title I of the ADA by the

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

8. Since at least July 1999, Defendant has engaged in unlawful employment

practices by engaging in a regular pattern and practice of subjecting Marci Cudmore and a class

of similarly-situated aggrieved individuals to unlawful pre-employment medical inquiries and

examinations and by unlawfully relying upon the results thereof as a basis to deny hire.

Specifically, Defendant discriminated against Ms. Cudmore and a class of similarly-situated

aggrieved individuals when it sent applicants to visit a chiropractor before extending a job offer.

Further, based upon the chiropractor's examination, Defendant refused to hire Ms. Cudmore and

a class of similarly-situated aggrieved individuals.

9.

The effect of the practices complained of above has been to deprive Ms. Cudmore

and a class of similarly-situated aggrieved individuals of equal opportunities and otherwise

adversely affect their status as an employee because they were disabled, regarded as disabled or

because they had a record of a disability.

10. The unlawful employment practices complained of in paragraph 8 above were

intentional.

11. The unlawful employment practices complained of in paragraph 8 above were

committed with malice or with reckless indifference to the federally protected rights of Ms.

Cudmore and a class of similarly-situated aggrieved individuals.

COMPLAINT

3

Case 3:04-cv-00338-H Document 1 Filed 02/17/04 Page 5 of 6 PageID 5

PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining the Defendant, its officers, successors, assigns, and all person in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of disability. B. Order the Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for Ms. Cudmore and a class of similarly-situated aggrieved individuals with disabilities, and eradicate the effects of its past and present unlawful unemployment practices. C. Order the Defendant to make whole Ms. Cudmore and a class of similarly-situated aggrieved individuals by providing appropriate back pay with prejudgment interest, in amounts to be proved at trial, and other affirmative relief necessary to eradicate the effects of the Defendant's unlawful employment practices, including but not limited to rightful-place reinstatement. D. Order the Defendant to make whole Ms. Cudmore and a class of similarly-situated aggrieved individuals by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described in paragraph 8 above, including but not limited to, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life, in amounts to be determined at trial. E. Order the Defendant to pay Ms. Cudmore and a class ofsimilarly-situated aggrieved individuals punitive damages for its malicious conduct or reckless indifference, described in paragraph 8 above, in an amount to be determined at trial. F. Grant such further relief as the Court deems necessary and proper in the public

COMPLAINT

4

Case 3:04-cv-00338-H Document 1 Filed 02/17/04 Page 6 of 6 PageID 6

interest. G.

Award the Commission its costs in this action. JURY TRIAL DEMAND

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

Respectfully submitted,
ERIC S. DREIBAND General Counsel
~J.c~~ Regional Attorney Oklahoma State Bar No. 011782 ~tM@SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
~~'1S RO TTA J. NCIS Senior Trial Attorney Virginia State Bar No. 39886
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, Texas 75202 Tel No. (214) 253-2746 Fax No. (214) 253-2749

COMPLAINT

5

 
 Case: 6:04-cv-157 As of: 05/09/2008 09:08 AM CDT 1 of 2
U.S. District Court [LIVE] Western District of Texas (Waco) CIVIL DOCKET FOR CASE #: 6:04−cv−00157−WSSM

CLOSED

Equal Employment Opp v. Jack of All Trades Assigned to: Judge Walter S. Smith Demand: $0 Cause: 42:2000 Job Discrimination (Public Accomodations)
Plaintiff

Date Filed: 06/07/2004 Date Terminated: 02/09/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Ronetta J. Francis EEOC − Dallas District Office 207 S. Houston, 3rd Floor Dallas, TX 75202 (214) 253−2746 Fax: 214/253−2749 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Jack of All Trades

represented by Douglas D. Haloftis Gardere Wynne Sewell LLP 1601 Elm Street 3000 Thanksgiving Tower Dallas, TX 75201−4761 (214)999−3000 Fax: (214)999−4667 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Brown Gardere Wynne Sewell LLP 1601 Elm Street Suite 3000 Dallas, TX 75201−4761 (214) 999−4969 Fax: 214/999−3969 Email: jbrown@gardere.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John T. Hawkins Naman, Howell, Smith &Lee, P.C. P.O. Box 1470 Waco, TX 76703−1470 (254) 755−4100 Fax: 254/754−6331 Email: hawkins@namanhowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/07/2004 06/07/2004

# Docket Text
Case assigned to Honorable Walter S. Smith (as) (Entered: 06/08/2004)
1 Original file, certified copy of transfer order and docket sheet received from Northern District of Texas, Dallas Division (as) (Entered: 06/08/2004)

Case: 6:04-cv-157 As of: 05/09/2008 09:08 AM CDT 2 of 2

06/14/2004 06/23/2004
06/23/2004 08/23/2004 08/23/2004 12/02/2004 01/07/2005
02/09/2005 02/09/2005 02/17/2005

2 Answer by Jack of All Trades (mc) (Entered: 06/14/2004)
3 Scheduling order setting ; Alternate Dispute Resolution Report due by 8/23/04 Joining of parties 10/25/04, amending of pleadings on 11/26/04 Deadline for filing of all motions 12/27/04 Discovery cutoff 12/27/04 Pretrial order to be submitted on or before 3/18/04 ; Jury Selection set for 9:00 3/28/05 ; Jury trial set for 9:00 3/28/05 , termed motions signed by Honorable Walter S. Smith (mc) (Entered: 06/24/2004)
4 Order on Courtroom Decorum and Trial Procedures signed by Honorable Walter S. Smith (mc) (Entered: 06/24/2004)
5 Alternate Dispute Resolution Report filed by Jack of All Trades, Party(s) agree to Alternate Dispute Resolution (as) (Entered: 08/26/2004)
6 Alternate Dispute Resolution Report filed by Equal Employment Opp, Party(s) agree to Alternate Dispute Resolution (as) (Entered: 08/27/2004)
7 Agreed Motion by Equal Employment Opp, Jack of All Trades with memorandum in support to extend deadlines and conduct mediation (mc) (Entered: 12/03/2004)
8 Order granting motion to extend deadlines and conduct mediation [7−1]. Ordered that the parties shall conduct mediation with Courtnay Bass of Burdin Mediation during the month of February, 2005 resetting scheduling order deadlines: Deadline for filing of all motions by 5/2/05 ; Discovery deadline on 5/2/05 ; Pretrial order to be submitted on or before 6/17/05 , resetting Jury selection to 9:00 6/20/05 , resetting Jury trial to 9:00 6/20/05 signed Honorable Walter S. Smith (mc) (Entered: 01/10/2005)
9 Consent Decree signed by Honorable Walter S. Smith (Pages: 11) (mc) (Entered: 02/10/2005)
Case closed (mc) (Entered: 02/10/2005)
10 Notice of Alternate Dispute Resolution Outcome settled during ADR (mc) (Entered: 02/22/2005)

 
 Office of General Counsel FY 2005 Annual Report

http://www.eeoc.gov/litigation/05annrpt/index.html

The inappropriate administration of medical examinations also screens out qualified individuals with disabilities. In EEOC v. Jack of All Trades Pers. Servs., Inc. (W.D. Tex. Feb. 9, 2005), a temporary employment agency based in Waco, Texas subjected applicants to medical examinations before making job offers and then refused to place them based on their examination results or because of their disabilities. For example, the agency rejected an applicant for a clerical position because the agency's doctor said she was overweight and had a 10-pound lifting restriction. Under a consent decree, the rejected applicant and 17 other individuals will receive a total of approximately $154,000. The agency agrees not to make disability-related inquiries of applicants or require applicants to submit to medical examinations prior to assigning them to a particular client with a specific starting date.

1 of 1

5/9/2008 9:49 AM

 
 Case: 3:04-cv-00338-H As of: 04/06/2013 12:25 PM CDT 1 of 2
CLOSED,JURY,TDIS
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:04−cv−00338−H

Equal Employment Opportunity Commission v. Jack of All Trades Personnel Services Inc Assigned to: Senior Judge Barefoot Sanders Cause: 42:2000 Job Discrimination (Public Accomodations)
Plaintiff

Date Filed: 02/17/2004 Date Terminated: 06/01/2004 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Ronetta J Francis Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253−2746 Fax: 214/253−2749 FAX Email: Ronetta.Francis@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

V.
Defendant
Jack of All Trades Personnel Services Inc

represented by John B Brown Ogletree Deakins Nash Smoak &Stewart PC Preston Commons West 8117 Preston Road, Ste 500 Dallas, TX 75225 214−987−3800 ext. 226 Fax: 214−987−3927 Email: john.brown@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John T Hawkins Naman Howell Smith &Lee LLP 900 Washington Ave 7th Floor Waco, TX 76701 254/755−4100 Fax: 254/754−6331 Email: hawkins@namanhowell.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Date Filed 02/17/2004
02/17/2004

# Docket Text
1 COMPLAINT against Jack of All Trades Personnel Services Inc , filed by Equal Employment Opportunity Commission.(jyg, ) (Entered: 02/18/2004)
DEMAND for Trial by Jury by Equal Employment Opportunity Commission. (jyg, ) (Entered: 02/18/2004)

Case: 3:04-cv-00338-H As of: 04/06/2013 12:25 PM CDT 2 of 2

02/17/2004 02/17/2004 02/17/2004 04/13/2004 04/14/2004 04/14/2004 05/03/2004 05/03/2004 05/03/2004 05/20/2004 05/25/2004
06/01/2004
06/01/2004

***Magistrate Judge Jeff Kaplan chosen by random selection to handle matters that may be referred in this case. (jyg, ) (Entered: 02/18/2004)
2 Summons Issued as to Jack of All Trades Personnel Services Inc to Helen Underwood, Registered Agent. (jyg, ) (Entered: 02/19/2004)
3 CERTIFICATE OF INTERESTED PERSONS by Equal Employment Opportunity Commission. (jyg, ) (Entered: 02/19/2004)
4 MOTION to Dismiss for Improper Venue by Jack of All Trades Personnel Services Inc with Supporting Brief. (attachments not imaged)(jyg, ) (Entered: 04/15/2004)
5 ORDER: Set Deadlines as to 4 Motion to Dismiss for Improper Venue Responses due by 5/5/2004 Replies due by 5/20/2004. (Signed by Judge Barefoot Sanders on April 14, 2004) (jyg, ) (Entered: 04/15/2004)
6 CERTIFICATE OF INTERESTED PERSONS by Jack of All Trades Personnel Services Inc. (jyg, ) (Entered: 04/15/2004)
7 RESPONSE in Opposition re 4 MOTION to Dismiss for Improper Venue filed by Equal Employment Opportunity Commission. (jyg, ) (Entered: 05/05/2004)
8 Memorandum in Support re 7 Response in Opposition to Dft's Motion to Dismiss for Improper Venue filed by Equal Employment Opportunity Commission. (jyg, ) (Entered: 05/05/2004)
9 Memorandum in Support re 7 Response in Opposition to Dft's Motion to Dismiss for Improper Venue filed by Equal Employment Opportunity Commission. (jyg, ) (Entered: 05/05/2004)
10 REPLY to Response in Opposition to Motion re 4 MOTION to Dismiss for Improper Venue filed by Jack of All Trades Personnel Services Inc. (jyg, ) (Entered: 05/21/2004)
11 ORDER: Lead counsel in all cases pending before Judge Barefoot Sanders are strongly encouraged to register for electronic transmission of notice. The District Clerk's Office has discontinued fax noticing of docket activity, and notices are being sent through U.S. mail to those attorneys who have not registered for electronic noticing. For more information about how to register for electronic noticing, counsel should visit the Northern District of Texas website at http://www.txnd.uscourts.gov/records/ens.html. (Signed by Judge Barefoot Sanders on May 25, 2004) (jyg, ) (Entered: 05/26/2004)
12 Memorandum Opinion and Order...Motion for change of venue granted 4 Motion to Dismiss is denied filed by Jack of All Trades Personnel Services Inc. This case is transferred to WD/TX Waco Division. (certified copy of order and docket sheet and case file sent to WD/TX Waco Division) (Signed by Judge Barefoot Sanders on 6/1/04) (klm, ) (Entered: 06/03/2004)
Interdistrict Transfer to WD/TX Waco Division (klm, ) (Entered: 06/03/2004)