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Case 0:06-cv-03731-MJD-AJB Document 1-1

Filed 09/15/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

EQUAL EMPLOYMENT OPPORTUNITY

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COMMISSION,

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Plaintiff,

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v.

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AMERICA'S BEST CONTACTS &

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EYEGLASSES, INC.,

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_____________D_ef_en_d_an_t.__________

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)

uw c CIVIL ACTION NO.
l) 37?;1 fYLTD/ A:11?>
COMPLAINT
JURY TRIAL DEMANDED

NATURE OF THE ACTION This is an action under the Age Discrimination in Employment Act to correct unlawful employment practices on the basis of age and to provide appropriate relief to Gloria Orth, whom Defendant America's Best Contacts & Eyeglasses subjected to differential discipline, denied fulltime employment, subjected to different terms and conditions of employment, and discharged because ofher age in violation ofthe Age Discrimination in Employment Act ("ADEA''), 29 U.S.C. § 626(b), et seq.
JURISDICTION AND VENUE I. 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 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA''), which incorporates by reference Sections 16(c) and 17 of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. §§ 216(c) and 217.

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2. The employment practices alleged to be unlawful were committed within the jurisdiction

of the United States District Court for the District of Minnesota.

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 the ADEA and is expressly authorized to bring this action by Section 7(b) of the

ADEA, 29 U.S.C. § 626(b), as amended by Section2 ofReorganization Plan No. I ofl978, 92 Stat.

3781, and by Public Law 98-532 (1984), 98 Stat. 2705.

4. At all relevant times, Defendant, America's Best Contacts and Eyeglasses (the

"Employer"), has continuously been doing business in the State of Minnesota and the City of

Roseville, and has continuously had at least 20 employees.

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

engaged in an industry affecting commerce within the meanirtg of Sections ll(b), (g) and (h) of the

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

CONCILIATION

6. Prior to institution of this lawsuit, the Commission's representatives attempted to

eliminate the unlawful employment practices alleged below and to effect voluntary compliance with

the ADEA through informal methods ofconciliation, conference and persuasion within the meaning

of Section 7(b) ofthe ADEA, 29 U.S.C. § 626(b).

STATEMENT OF CLAIMS

7.

Since at least 2004, the Defendant engaged in unlawful employment practices at its

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Roseville, Minnesota facility, in violation of Section 4(a) of the ADEA, 29 U.S.C. § 623(a). These practices include subjecting Gloria Orth to differential discipline, denial of full-time employment, different terms and conditions of employment, and discharge because of her age, 49.
8. The effect ofthe practices complained ofthe in paragraph(s)above has been to deprive Gloria Orth of equal employment opportunities and otherwise adversely affect status as an employee, because of her age.
9. The unlawful employment practices complained of in the paragraphs above were willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
JURY TRIAL DEMAND 10. The Commission requests a jury trial on all questions of fact raised by its complaint.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant America's Best Contacts & Eyeglasses, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in promotion, assignment, discharge, terms and conditions of employment and any other employment practice which discriminates on the basis of age against individuals 40 years of age and older. B. Order Defendant America's Best Contacts & Eyeglasses to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful
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employment practices. C. Grant a judgment requiring Defendant America's Best Contacts & Eyeglasses to
pay appropriate back wages in an amount to be determined at trial, an equal sum as liquidated damages, and prejudgment interest to individuals whose wages are being unlawfully withheld as a result of the acts complained of above, including but not limited to Gloria Orth.
D. Order Defendant America's Best Contacts & Eyeglasses to make whole all individuals adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to instatement of Gloria Orth to a full-time position.
E. Grant such further relief as the Court deems necessary and proper in the public interest.
F. Award the Commission its costs of this action. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION RONALD S. COOPER General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel 1801 L Street, N.W. Washington, DC 20507
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Dated:
Dated: {-)/-() (.
Dated: Cf/11/tU

ssociate Regional Attorney
Chicago District Office 500 West Madison Street, Suite 2800 Chicago, IL 60661 (312) 353-8550
Senior Trial Attorney
Minneapolis Area Office 330 Second Avenue South, Suite 430 Minneapolis, MN 55401 (612) 335-4061 laurie. vasichek@eeoc. gov

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 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

EQUAL EMPLOYMENT OPPORTUNITY, COMMISSION,

Plaintiff,

Civ. No. 06-3731 MJD/AJB

v. CONSENT DECREE

AMERICA’S BEST CONTACTS & EYEGLASSES, INC.,

Defendant.

INTRODUCTION Plaintiff Equal Employment Opportunity Commission ( “EEOC”) instituted this action alleging that America’s Best Contacts & Eyeglasses, Inc., (“America’s Best”) discriminated against Gloria Orth based upon her age by subjecting her to different discipline, denying her full-time employment, and discharging her because of her age. The EEOC contends that America’s Best violated the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq. (hereinafter “ADEA”). America’s Best denied the allegations of discrimination in its answers to the Complaint in this matter. No party to this Consent Decree admits the claims or defenses of the other parties. Following arms’ length negotiations, the parties reached mutually agreeable terms for resolution of this matter, which they submitted for the Court’s review. THEREFORE, it is the finding of this Court, made on the pleadings and on the record as a whole and upon agreement of the parties, that: (i) this Court has jurisdiction over the parties to and the subject matter of this action, (ii) the requirements of the ADEA will be carried out by the implementation of this Consent Decree, (iii) this Consent Decree is intended to and does resolve all matters in controversy in this lawsuit among the parties, (iv) the terms of this Consent Decree

constitute a fair and equitable settlement of all issues in this lawsuit, and (v) this Consent Decree is intended to and does resolve claims of the EEOC pursuant to the ADEA that are based upon the employment and discharge of Gloria Orth.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows: I. SCOPE OF DECREE
A. “America’s Best” as used in this Decree shall refer to the Roseville, Minnesota, facility, where Gloria Orth was employed. This Decree is not intended to apply to other America’s Best facilities or to resolve claims, if any, that may exist against such facilities. B. The EEOC agrees that it will not bring any further claim against America’s Best relating to any claims that have been or could have been brought as a part of this lawsuit. The EEOC does not waive or in any manner limit its right to process or seek relief in any other charge or investigation based upon allegations not included in the charge underlying this litigation. C. This Consent Decree shall be for a period of two years and can only be extended for good cause shown such as failure to comply with all obligations under the Decree. During the Consent Decree's term, the Court shall retain jurisdiction of this cause for purposes of compliance.
II. INJUNCTIVE RELIEF A. America’s Best is enjoined from discriminating based upon age in violation of the ADEA in the discipline of employees, in determining the fulltime status of employees or in the discharge of employees. B. America’s Best shall not discriminate or retaliate against any person because he or she has opposed any practices alleged in this action as unlawful under the ADEA, has participated in an investigation conducted under the ADEA with respect to this complaint, or has participated in
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this lawsuit or has benefited in any way as a result of this Consent Decree. III. MONETARY RELIEF
Within thirty (30) days of the entry of this Consent Decree, America’s Best shall issue a check to Gloria Orth in the gross amount of $40,000, less only any applicable deductions for the employee's portion of FICA and applicable federal and state income tax withholdings, provided that Ms. Orth has executed the Waiver and Release attached hereto as Exhibit A. The check shall be mailed by certified mail to Ms. Orth’s last known address, which shall be provided by the EEOC within ten days of the entry of this judgment. America’s Best shall send a copy of the check to the EEOC at the time of mailing to Ms. Orth.
IV. POSTING AND POLICIES A. America’s Best shall post and cause to remain posted the posters required to be displayed in the workplace by EEOC regulation 29 C.F.R. § 1601.30. B. America’s Best shall post and cause to remain posted the notice attached hereto as Exhibit B in a location where employee notices are typically posted for the term of this Consent Decree.
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V. TRAINING Annually for the term of this Consent Decree, America’s Best shall provide training to its management on the ADEA and its prohibitions against age discrimination. The first training session will take place within 45 days of entry of this Decree. Each training session shall last a minimum of three hours, and information relating to other prohibitions against employment discrimination under federal law can also be covered during this training session. The training session shall be mandatory for covered personnel.
VI. REPORTING A. Within 45 days of the entry of this Consent Decree, America’s Best shall prepare and submit to the undersigned EEOC attorney a letter indicating that the notice has been posted as required by Section IV(B) above. B. America’s Best shall prepare and submit to the undersigned EEOC attorney a letter when it has completed each of its training sessions as required by Section V above. C. Every six months during the term of this Consent Decree, America’s Best will notify the undersigned EEOC attorney if it receives any complaints of discrimination based upon age, and identify the circumstances surrounding the complaint, including the resolution, if any, of the complaint. D. During the term of this Consent Decree, America’s Best shall allow representatives of the EEOC to review America’s Best's compliance with this Consent Decree by inspecting and photocopying relevant documents and records, interviewing employees and management officials on their premises, and inspecting its premises. Such review of compliance shall be initiated by written notice to America’s Best's attorney of record at least seven (7) business days in advance of any inspection of a District’s documents or premises.
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VI. COSTS AND ATTORNEYS FEES Each party shall bear that party’s own costs and attorneys fees.
BY THE COURT:

DATE: October 16, 2007

s/Michael J. Davis Michael J. Davis United States District Judge

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BY CONSENT: FOR AMERICA’S BEST CONTACTS & EYEGLASSES, INC.
By s/Mitchell Goodman Its: Sr. VP

FOR PLAINTIFF EEOC:
RONALD S. COOPER General Counsel
JAMES LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
s/John C. Hendrickson/LAV JOHN C. HENDRICKSON Regional Attorney
s/Jean P. Kamp/LAV JEAN P. KAMP Associate Regional Attorney
s/Laurie A. Vasichek LAURIE A. VASICHEK (0171438) laurie.vasichek@eeoc.gov Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 330 2nd Avenue South, Suite 430 Minneapolis, MN 55401 (612) 335-4061

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EXHIBIT A In consideration for $40,000 paid to me by America’s Best Contacts & Eyeglasses, Inc., in connection with the resolution of EEOC v. America’s Best Contacts & Eyeglasses, Inc., Civ. No. 06-3731 MJD/AJB, I waive my right to recover for any claims of age discrimination under the Age Discrimination in Employment Act that I had against America’s Best Contacts & Eyeglasses, Inc., and that were included in the claims made in EEOC’s complaint in EEOC v. America’s Best Contacts & Eyeglasses, Inc., Civ. No. 06-3731.

Dated: ___________________

_________________________ Gloria Orth

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EXHIBIT B
NOTICE TO EMPLOYEES This Notice is posted pursuant to a Consent Decree resolving a lawsuit with the Equal Employment Opportunity Commission (“EEOC”). The EEOC brought suit against America’s Best Contacts & Eyeglasses, alleging that it had discriminated against an employee based upon her age. America’s Best denied the allegations of discrimination in its answers to the Complaint in this matter, and no party to this Consent Decree admits the claims or defenses of the other parties. In resolution of this lawsuit, America’s Best Contacts & Eyeglasses agreed to pay the employee $40,000, to post this notice, and other equitable relief. Federal law requires that there be no discrimination against any employee or applicant for employment because of the individual’s race, color, religion, sex, national origin or age (40 and over) with respect to hiring, promotion, firing, compensation, or other terms, conditions or privileges of employment. America’s Best Contacts & Eyeglasses, Inc., will comply with such Federal law in all respects and will not take any action against employees because they have exercised their rights under the law. Specifically, America’s Best Contacts & Eyeglasses, Inc., will not discriminate against employees on the basis of age in the discipline, the assignment, or the discharge of employees.

Date: October 16, 2007

s/Michael J. Davis Michael J. Davis U.S. District Court Judge

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 CM/ECF - District of Minnesota - Live

https://ecf.mnd.uscourts.gov/cgi-bin/DktRpt.pl?143487140422136-L_1...

U.S. District Court U.S.District Court Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:06-cv-03731-MJD-AJB

CLOSED, CV

Equal Employment Opportunity Commission v. America's Best Contacts & Eyeglasses, Inc. Assigned to: Judge Michael J. Davis Referred to: Magistrate Judge Arthur J. Boylan Cause: 29:621 Job Discrimination (Age)

Date Filed: 09/15/2006 Date Terminated: 10/16/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Jean P Kamp Equal Employment Opportunity Commission 310 W Wisconsin Ave Ste 800 Milwaukee, WI 53203-2292 414-297-1860 Fax: 414-297-3146 Email: jean.kamp@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie A Vasichek Equal Employment Opportunity Commission 330 S 2nd Ave Ste 430 Minneapolis, MN 55401-2224 612-335-4040 Fax: 612-335-4044 Email: laurie.vasichek@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
America's Best Contacts & Eyeglasses, Inc.

represented by Dean A LeDoux Gray Plant Mooty Mooty & Bennett, PA 80 S 8th St Ste 500 Mpls, MN 55402 612-632-3233 Fax: 612-632-4233 Email: dean.ledoux@gpmlaw.com

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LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judith Bevis Langevin Gray Plant Mooty Mooty & Bennett, PA 80 S 8th St Ste 500 Mpls, MN 55402 612-632-3000 Fax: 612-632-4444 Email: judithbevis.langevin@gpmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ugo A Ukabam Gray Plant Mooty Mooty & Bennett, PA 80 S 8th St Ste 500 Mpls, MN 55402 612-632-3000 Fax: 612-632-4444 Email: ugo.ukabam@gpmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/15/2006
09/15/2006 10/04/2006 10/04/2006 10/04/2006 10/25/2006
11/28/2006

# Docket Text
1 COMPLAINT with Jury Demand against America's Best Contacts & Eyeglasses, Inc. assigned to Judge Michael J. Davis per Civil Rights referred to Magistrate Judge Arthur J. Boylan, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(SEA) (Entered: 09/16/2006)
Summons Issued as to America's Best Contacts & Eyeglasses, Inc.. (SEA) (Entered: 09/16/2006)
2 Defendant's ANSWER to Complaint by America's Best Contacts & Eyeglasses, Inc..(Langevin, Judith) (Entered: 10/04/2006)
3 RULE 7.1 DISCLOSURE STATEMENT by America's Best Contacts & Eyeglasses, Inc. that there is no such parent or publicly held corporation to report. (Langevin, Judith) (Entered: 10/04/2006)
4 CERTIFICATE OF SERVICE by America's Best Contacts & Eyeglasses, Inc. re 2 Answer to Complaint, 3 Rule 7.1 - Disclosure Statement (Langevin, Judith) (Entered: 10/04/2006)
5 NOTICE OF PRETRIAL CONFERENCE Pretrial Conference set for 12/4/2006 09:45 AM, Suite 720, in St Paul before Magistrate Judge Arthur J Boylan. Signed by Magistrate Judge Arthur J Boylan on 10/24/2006. (Attachments: # 1 Consent Form)(jc) (Entered: 10/25/2006)
6 REPORT of Rule 26(f) Planning Meeting by Equal Employment Opportunity Commission, America's Best Contacts & Eyeglasses, Inc.. (Attachments: # 1

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12/04/2006 12/05/2006 10/16/2007

Certificate of Service)(Ukabam, Ugo) (Entered: 11/28/2006)
7 Minute Entry for proceedings held before Magistrate Judge Arthur J. Boylan : Initial Pretrial Conference held on 12/4/2006. Scheduling Order to be issued. (RJL) (Entered: 12/04/2006)
8 PRETRIAL SCHEDULING ORDER: Discovery due by 10/5/2007. Motions (non-disp) due 10/5/2007. Motions (disp) due by 1/1/2008. Ready for trial due by 1/1/2008 . Signed by Magistrate Judge Arthur J. Boylan on 12/4/2006. (kt) (Entered: 12/05/2006)
9 CONSENT DECREE. Signed by Judge Michael J. Davis on 10/16/07. (kmw) (Entered: 10/16/2007)

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