UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

05 FEB 28 Pf1 I: 37

EQUAL EMPLOYMENT OPPORTUNITY)

COMMISSION,

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Plaintiff,

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v.

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FIVE CAP, INC.

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Defendant.

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8'Cf ___.. ~----.--a a CASE NO. 1 : 5 CV 153
COMPLAINT AND 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 of disability and to make whole Cheryl Ann McInnis-Smith ("Smith"). The Equal Employment Opportunity Commission ("Commission") alleges that Five Cap, Inc., Defendant, refused to allow Smith to return to work following a medical leave of absence because of her disability.
JURISDICTION AND VENUE 1. Jurisdiction ofthis Court is invoked pursuantto 28 US.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) ofthe Americans with Disabilities Act of 1990 ("ADA"), 42 US.C. § 12117(a), which incorporate by reference Sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 US.c. §§ 2000e5(f)(1) and (3), and pursuant to Section 102 ofthe Civil Rights Act of1991, as amended, 42 U.S.C. § 1981a. 2. The employment practices hereafter alleged to be unlawful were committed in the

Western District of Michigan. PARTIES
3. Plaintiff, Equal Employment Opportunity Commission (the "Commission"), is an agency of the United States of America charged with the administration, interpretation, and enforcement ofTitle I ofthe ADA and is expressly authorized to bring this action by Section 107(a) and Section 503(c) of the ADA, 42 US.c. § 12117(a) and § 12203(c), which incorporate by reference Sections 706(f)(1) and (3) of Title VII, 42 US.c. § US.C. § 2000e-5(f)(1) and (3).
4. At all relevant times, the Defendant (the "Employer"), has been doing business in the State of Michigan, and has continuously had at least (15) employees.
5. At all relevant times the Defendant Employer has continuously been engaged in an industry affecting commerce within the meaning of Section 101(5) of the ADA, 42 US.C. § 12111(5), and Section 101(7) of the ADA, 42 US.c. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 US.C. § 2000e(g) and (h).
6. At all relevant times, the Defendant Employer has been a covered entity under Section 101(2) ofthe ADA, 42 US.c. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty (30) days prior to the institution ofthis lawsuit, Smith filed a charge with the Commission alleging violations of Title I of the ADA by the Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Beginning on or about March 31,2003, the Defendant Employer engaged in unlawful employment practices in violation of Section 102(a) of the ADA, 42 US.C. § 12112(a). These practices include Defendant's refusal to allow Smith to return to work following a medical leave of
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absence for medical treatment, insisting that Smith could return only after all medical treatment was completed, and refusing to allow Smith to return to her former position or a comparable position after she completed all medical treatment. Smith is a qualified individual who was and is able, with or without a reasonable accommodation, to perform the essential functions of her job.
9. The effect of the above-mentioned, unlawful employment practices have been to deprive Smith of equal employment opportunities and otherwise adversely affect her status as an employee because of her disability.
10. The above-mentioned, unlawful employment practices were intentional. 11. The above-mentioned, unlawful employment practices caused Smith emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. 12. The above-mentioned, unlawful employment practices were done with malice or with reckless indifference to the federally protected rights of Smith.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining the Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it from engaging in any unlawful employment practice which discriminates on the basis of disability; B. Order the Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for individuals with disabilities, and which eradicate the effects of its past and present unlawful employment practices; C. Order the Defendant Employer to make whole Smith by providing her with appropriate lost earnings and benefits, with prejudgement interest, in amounts to be proven
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at trial, and other affinnative relief necessary to eradicate the effects of its unlawful employment practices including, but not limited to, re-hiring Smith to the position which she sought with pay and benefits equal to that which she would have attained had she been originally hired; D. Order Defendant to provide mandatory training regarding the American with Disabilities Act and its prohibition against disability discrimination to all management and non-management employees. E. Order the Defendant to pay Smith compensatory damages; F. Order the Defendant to pay Smith punitive damages; G. Grant the Commission its costs in this action; and H. Grant such further relief as the Court deems necessary and proper.
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

Dated: February 25, 2005

ROBERT K. DAWKINS (P38289) Supervisory Trial Attorney
TRINA R. MENGESHA (P59458) Trial Attorney
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DETROIT DISTRICT OFFICE Patrick V. McNamara Federal Building 477 Michigan Avenue, Room 865 Detroit, MI 48226 (313) 226-4620
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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

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COMMISSION,

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Plaintiff,

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v.

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FIVE CAP, INC.

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Defendants.

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__________________________________________)

Case No. 1:05-CV-0153
HONORABLE ROBERT HOLMES BELL

CONSENT DECREE 1. Plaintiff, the United States Equal Employment Opportunity Commission (the "Commission") commenced this action on February 28, 2005 in the United States District Court for the Western District of Michigan, Southern Division, alleging that the Defendant, Five Cap, Inc. (“Defendant”), failed to allow Charging Party, Cheryl McInnis-Smith to return to work following a medical leave of absence, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. 2. As a result of settlement discussions, the Commission and Defendant have resolved their differences and have agreed that this action should be settled. It is the intent of the parties that this be a final and binding settlement in full disposition of any and all claims alleged or which could have been alleged in the Complaint against Defendant or in the Charge of Discrimination filed by Cheryl McInnis-Smith, Charge No. 230-2004-02670. 3. The Commission is the agency of the United States government authorized by the

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ADA to investigate allegations of unlawful employment discrimination based upon disability, to bring civil actions to prohibit unlawful employment practices, and to seek relief for individuals affected by such practices.
4. Defendant is an employer engaged in an industry affecting commerce within the meaning of Section 101(5) of the ADA, 42 U. S.C. § 12111(2), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. § 2000e (g) and (h). Defendant had at least 25 employees for 20 or more calendar weeks during the relevant period of time.
5. Pursuant to the ADA, the parties acknowledge the jurisdiction of the United States District Court for the Western District of Michigan over the subject matter and parties to this case for the purpose of entering this Decree, and if necessary, enforcing the provisions of this agreement.
6. Venue is appropriate in the Western District of Michigan. For purposes of this Decree and proceedings related to this Decree only, Defendant agrees that all statutory conditions precedent to the institution of this lawsuit against Defendant has been fulfilled.
7. Having examined the terms and provisions of the Consent Decree and based on the pleadings, records, and stipulations of the parties, the parties agree to the following:
a. The Court has jurisdiction over the subject matter of this action against Defendant;
b. The terms and provisions of this Consent Decree are fair, reasonable and just. The rights of Defendant, the Commission, and those for whom the Commission seeks relief are adequately protected by this Decree;
c. The Consent Decree conforms with the Federal Rules of Civil Procedure and the
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ADA, and is not in derogation of the rights and privileges of any person. The entry of this Decree will further the objectives of the ADA and will be in the best interests of the parties and those for whom the Commission seeks relief.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT: 8. This agreement, being entered with the consent of the Commission and Defendant, shall not constitute an adjudication or finding on the merits of this case and shall not be construed as an admission by Defendant of any violation of the ADA or, any other law, rule or regulation dealing with or in connection with equal employment opportunity. 9. Defendant, its officers, agents, employees, successors, assigns and all persons in active concert or participation with them or any of them shall comply with the provisions of the ADA, 42 U.S. C. § 12101 et seq., with regard to disability discrimination. 10. Defendant shall not take any action against any person which constitutes intimidation, retaliation, harassment, or interference with the exercise of such person's rights under the ADA because of the filing of the Charge of Discrimination by Cheryl McInnis-Smith, which forms the basis for the present case, or because such person gave testimony or assistance or participated in any manner in any investigation or proceeding in connection with this case under the ADA. 11. Defendant shall, within ten (10) days of entry of this Consent Decree, pay Cheryl McInnis-Smith $60,000. This monetary compensation shall be paid in one check made payable to Cheryl McInnis-Smith, 423 Emory Street, Howard City, Michigan 49329. Defendant shall mail this payment to Cheryl Smith by overnight mail within ten (10) days after this Consent Decree has been entered by the Court. The Commission shall have the right to monitor
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compliance with this paragraph through inspection of all documents relating to said disbursement, including but not limited to, a copy of the check, check stub, return receipt, letters, and any other documents evincing payment hereunder.
13. Defendant agrees that within 90 days it will provide a mandatory training program to all employees and managers which will focus on the requirements of the federal equal employment opportunity laws, including the Americans with Disabilities Act of 1990, as amended. The training will include treatment of persons returning from medical leave, and shall also discuss the duty of reasonable accommodation for employees with disabilities and the interactive process. Within 30 days after all manager employees have been trained Defendant will provide the E.E.O.C. with a list of all attendees and certify that all manager employees have been trained.
POSTING OF NOTICE 14. Defendant agrees that it shall post a copy of the Notice attached as Exhibit A in a conspicuous location at all of its Michigan facilities where employee notices are posted. The notice shall be posted for three (3) years from the date the Consent Decree is entered by the Court. Should the posted notice become defaced, marred or otherwise made unreadable, Defendant agrees to post a readable copy of the notice as soon as practical thereafter.
DURATION 15. This Consent Decree shall remain in effect for three (3) years from the date it is entered, and the Court shall retain jurisdiction of this action during the duration of this Decree to enforce compliance with the Decree. 16. The Court will have all available equitable powers, including injunctive relief, to
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enforce this Decree. Upon motion of any party, the Court may schedule a hearing for the purpose of reviewing any party's compliance with this Decree and/or ordering appropriate relief to determine whether the parties have complied with the terms of this Decree. Prior to seeking review by the Court, the parties shall engage in a good faith effort to resolve any dispute concerning compliance with the Decree. Any party seeking court review of a matter shall be required to give ten (10) days notice to the other parties before moving for such review.
17. Each party shall bear its own court costs and attorney fees. 18. If any provision(s) of this Agreement is found to be unlawful, only the specific provision(s) in question shall be affected and the other provisions will remain in fall force and effect. 19. The terms of this Decree shall be binding upon the present and future owners, officers, directors, employees, creditors, agents, trustees, administrators, successors, representatives, and assigns of Defendant. 20. This Agreement constitutes the entire agreement and commitments of the parties. Any modifications to this Decree must be mutually agreed upon and memorialized in a writing signed by Defendant and the Commission. 21. When this Decree requires or permits the submission any documents by Defendant to the Commission, if not otherwise indicated in the Decree, they shall be mailed to Laurie A. Young, Regional Attorney, EEOC, Indianapolis District Office, 101 West Ohio Street, Suite 1900, Indianapolis, IN 46204.
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EQUAL EMPLOYMENT OPPORTUNITY

FIVE CAP, INC.

/s/ Trina Mengesha
_________________________ Trina R. Mengesha Senior Trial Attorney
Detroit Field Office Patrick V. McNamara Federal Building 477 Michigan Ave., Room 865 Detroit, MI 48226
IT IS SO ORDERED:

/s/ Richard McNulty, with permission
Richard McNulty Cohl, Stoker , Toskey & McGlinchey 601 North Capitol Lansing, MI 48933

_/_s__/__R_o_b__e_r_t__H__o_l_m_e_s___B_e_l_l______ HONORABLE ROBERT HOLMES BELL

_N_o__v_e_m_b_e__r__1_3_,___2_0_0_6____ DATE

EXHIBIT A 6

NOTICE TO ALL EMPLOYEES This Notice is being posted as a result of a Consent Decree entered between the United States Equal Employment Opportunity Commission and Five Cap, Inc. to inform you of your rights guaranteed by federal law under the Americans With Disabilities Act, 42 U.S. C. § 12101 et. seq. ("ADA"). The ADA prohibits discrimination against any employee on the basis of disability with regard to any term or condition of employment including hiring, layoff, recall, promotion, discharge, pay and fringe benefits or in retaliation for the opposition to unlawful employment practices. The United States Equal Employment Opportunity Commission is the federal agency which investigates charges of unlawful employment discrimination and, if necessary, files lawsuits in federal court to enforce the anti-discrimination provisions of the ADA. Any employee who believes that he/she is the victim of discrimination or retaliation has the legal right to file a charge of discrimination with the U.S. Equal Employment Opportunity Commission. Five Cap supports and will comply with this federal law in all respects. Five Cap will not take any action against any employees because they have exercised their rights under the ADA.

____________________________________ FIVE CAP, INC.

DATE

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 United States District Court for the Western District of Michigan - Dock... https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?777695950976153-L_...

United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:05-cv-00153-RHB

CLOSED, VFM

Equal Employment Opportunity Commission v. Five Cap, Inc. Assigned to: Chief Judge Robert Holmes Bell Cause: 28:451 Employment Discrimination

Date Filed: 02/28/2005 Date Terminated: 11/13/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

plaintiff
Equal Employment Opportunity Commission

represented by Adele Rapport U.S. Equal Employment Opportunity Commission (MI) 865 Patrick V. McNamara Bldg. 477 Michigan Ave. Detroit, MI 48226 (313) 226-6701 Email: adele.rapport@eeoc.gov TERMINATED: 06/07/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trina R. Mengesha U.S. Equal Employment Opportunity Commission (MI) 865 Patrick V. McNamara Bldg. 477 Michigan Ave. Detroit, MI 48226 (313) 226-4620 Email: trina.mengesha@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Weaver U.S. Equal Employment Opportunity Commission (MI) 865 Patrick V. McNamara Bldg. 477 Michigan Ave. Detroit, MI 48226 (313) 226-3407 Email: omar.weaver@eeoc.gov ATTORNEY TO BE NOTICED

V.

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defendant Five Cap, Inc.
mediator Facilitative Mediator

represented by Richard D. McNulty Cohl Stoker Toskey & McGlinchey PC 601 N Capitol Ave. Lansing, MI 48933 (517) 372-9000 Email: rmcnulty@cstmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jon G. March Miller Johnson PLC (Grand Rapids) 250 Monroe Ave., NW, Ste. 800 P.O. Box 306 Grand Rapids, MI 49501-0306 (616) 831-1729 Fax: (616) 988-1729 Email: marchj@millerjohnson.com LEAD ATTORNEY

Date Filed 02/28/2005 02/28/2005 03/17/2005 03/24/2005
04/07/2005
04/12/2005 04/13/2005

#

Docket Text

1 COMPLAINT with jury demand against Five Cap, Inc. filed by Equal Employment Opportunity Commission (cmi, ) (Entered: 03/02/2005)
SUMMONS ISSUED as to Five Cap, Inc. (cmi, ) (Entered: 03/02/2005)
2 ANSWER to complaint and Affirmative Defenses by Five Cap, Inc. (McNulty, Richard) (Entered: 03/17/2005)
3 ORDER setting Rule 16 scheduling conference: Rule 16 scheduling conference is set for 4/12/2005 at 04:00 PM at Lansing, MI before Judge David W. McKeague; status report due by 4/7/2005 ; signed by Judge David W. McKeague (Judge David W. McKeague, bsd) (Entered: 03/24/2005)
4 JOINT STATUS REPORT submitted for filing by plaintiff Equal Employment Opportunity Commission and defendant Five Cap, Inc. (McNulty, Richard) Modified on 4/8/2005 to add pltf filer (pjl) (Entered: 04/07/2005)
5 MINUTES of scheduling conference held before Judge David W. McKeague (Judge David W. McKeague, bsd) (Entered: 04/13/2005)
6 CASE MANAGEMENT ORDER: jury trial set for March, 2006, trial docket at Lansing, MI before Judge David W. McKeague; settlement conference set for 1/10/2006 at 09:30 AM at Grand Rapids, MI before Magistrate Judge Joseph G. Scoville; final pretrial conference set for 2/6/2006 at 11:00 AM at Lansing, MI before Judge David W. McKeague; ; signed by Judge David W. McKeague (Judge David W. McKeague, bsd) (Entered: 04/13/2005)

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05/24/2005 05/25/2005 06/20/2005
06/30/2005 08/01/2005 10/03/2005 11/22/2005 11/22/2005 12/05/2005 12/09/2005 02/01/2006
03/14/2006 04/11/2006

7 CERTIFICATE OF SERVICE by defendant Five Cap, Inc. re: Defendant's Initial Disclosures (McNulty, Richard) (Entered: 05/24/2005)
8 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission Rule 26 disclosures (Mengesha, Trina) (Entered: 05/25/2005)
9 ORDER referring case to VOLUNTARY FACILITATIVE MEDIATION: Facilitative Mediator rep by Jon G. March added; plaintiff VFM fee to be submitted by 7/5/2005; defendant VFM fee to be submitted by 7/5/2005 ; signed by Judge David W. McKeague (Judge David W. McKeague, bsd) (Entered: 06/20/2005)
VFM FEE RECEIVED in the amount of $25.00, check number 15198 for payment of Defendant Five Cap, Inc.'s VFM fee (ADR Administrator, mjs) (Entered: 06/30/2005)
VFM FEE RECEIVED in the amount of $25.00, check number 168 for payment of Plaintiff Equal Employment Opportunity Commission's VFM fee (ADR Administrator, mjs) (Entered: 08/01/2005)
10 ATTORNEY APPEARANCE of Omar Weaver on behalf of plaintiff Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 10/03/2005)
11 PROPOSED STIPULATION and ORDER Extending Discovery and Other Deadlines by defendant Five Cap, Inc. (McNulty, Richard) (Entered: 11/22/2005)
12 ORDER granting STIPULATION 11 EXTENDING DEADLINES; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 11/22/2005)
13 ADMINISTRATIVE ORDER No. 05-158 that this case is reassigned to Chief Judge Robert Holmes Bell for all further proceedings; signed by Chief Judge Robert Holmes Bell (gjf) Modified text on 12/9/2005 (mbb, ). (Entered: 12/06/2005)
14 NOTICE rescheduling hearing that was previously set for 1/10/06; settlement conference rescheduled for 6/29/2006 at 09:30 AM at 685 Federal Building, Grand Rapids, MI before Magistrate Judge Joseph G. Scoville; (Magistrate Judge Joseph G. Scoville, mmh) (Entered: 12/09/2005)
15 ORDER SETTING FINAL PRETRIAL AND JURY TRIAL: Jury trial set for 8/28/2006 at 9:00 am before Chief Judge Robert Holmes Bell, 601 Ford Federal Building, 110 Michigan St., NW, Grand Rapids, MI; Final Pretrial Conference set for 8/21/2006 at 1:30 pm before Chief Judge Robert Holmes Bell, 601 Ford Federal Building, 110 Michigan St., NW, Grand Rapids, MI; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, ymc) (Entered: 02/01/2006)
16 PROPOSED STIPULATION and ORDER Extending Discovery And Other Deadlines by defendant Five Cap, Inc. (McNulty, Richard) (Entered: 03/14/2006)
17 AMENDED CASE MANAGEMENT ORDER: jury trial set for 9/18/2006 at 9:00 AM at 601 Federal Building, Grand Rapids, MI before Chief Judge Robert Holmes Bell; settlement conference set for 8/15/2006 at 9:30 AM at 699 Federal Building, Grand Rapids, MI before Magistrate Judge Joseph G. Scoville; final

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05/30/2006 06/01/2006 06/07/2006 06/08/2006 06/16/2006 08/18/2006 11/09/2006 11/13/2006

pretrial conference set for 9/8/2006 at 1:00 PM at 601 Federal Building, Grand Rapids, MI before Chief Judge Robert Holmes Bell; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, ymc) (Entered: 04/11/2006)
18 PROPOSED STIPULATION and ORDER Extending, By Seven Days Only, the Deadlines To File and Respond To Dispositive Motions by defendant Five Cap, Inc. (McNulty, Richard) (Entered: 05/30/2006)
19 ORDER granting STIPULATION 18 extending, by 7 days, the deadline to file and respond to dispositive motions; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, ymc) (Entered: 06/01/2006)
20 NOTICE of Withdrawal of Counsel by plaintiff Equal Employment Opportunity Commission (Rapport, Adele) (Entered: 06/07/2006)
21 PROPOSED STIPULATION and ORDER To Adjourn Pending Approval Of Settlement By The Bankruptcy Court by defendant Five Cap, Inc. (McNulty, Richard) (Entered: 06/08/2006)
22 ORDER granting STIPULATION 21 and adjourning settlement conference, final pretrial and trial; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, sdb) (Entered: 06/16/2006)
23 LETTER from Richard D. McNulty for defendant Five Cap, Inc. regarding Status Of Case Settlement (McNulty, Richard) (Entered: 08/18/2006)
24 PROPOSED CONSENT DECREE by plaintiff Equal Employment Opportunity Commission (Mengesha, Trina) (Entered: 11/09/2006)
25 ORDER granting consent decree 24; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, ymc) (Entered: 11/13/2006)

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