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IN THE UNITED STATES DISTRICT COURT

Flt:ED
.~HARLOTT£. N. Cr .

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

BRYSON CITY DIVISION

AUG 16

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• '

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

KERR DRUG, INC.

)

)

Defendant.

)

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

CIVIL

ACTION

U. S.
NO.W.

DISTRICT
DIST. OF

NC.OcU.RT

~. '1J S~v 0-1/-- ,_,_

COMPLAINT JURY TRIAL DEMAND

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of religion and to provide appropriate relief to Conda Hartsell and Rhonda Cowart, who were adversely affected by :.·, the practices. The Equal Employment Opportunity Commission (the "Commission") alleges that Defe.ndant Kerr Drug, Inc. discriminated against Conda Hartsell and Rhonda Cowart by refusing to reasonably accommodate their sincerely held religious beliefs and discharging them because oftheir religion, Christian (Baptist).
WRISDICTION 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 Sections 706(f)(l) and (3) of Title Vllofthe Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(f)(l) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a.
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Westen1 District ofNorth Carolina.
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PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission ("Commission") is the agency of the United States ofAmerica charged with the administration, interpretation and enforcement ofTitle VII ofthe Civil Rights Act of 1964, and is expressly authorized to bring this
action by Sections 706(f)(l) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(l) and (3).
4. At all relevant times, Defendant has continuously been a Delaware corporation doing business in the state ofNorth Carolina and the City ofFranklin, and has continuously had at least 15 employees.
5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) ofTitle VII, 42
U.S.C. §§ 2000e(b); (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Conda Hartsell and Rhonda Cowart filed charges with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution ofthis lawsuit have been fulfilled. 7. From approximately December 2003 until January 2004, Defendant engaged in unlawful employment practices at its Franklin, North Carolina store, in violation of Section
703(a)(l) of Title VII, 42 U.S.C. § 2000e-2(a)(l). Specifically, Defendant subjected Conda
Hartsell to discrimination when it failed to accommodate her religion Christian (Baptist) and discharged her because of her religious beliefs and practices. Ms. Hartsell infonned Defendant, or Defendant was otherwise made aware, that Ms. Hartsell could not work Sundays or Wednesday nights because she had a sincerely held religious beliefthat she should attend church
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services at those times. Beginning around December 2003, Defendant implemented a work schedule which conflicted with Ms. Hartsell's religious beliefs and practices by requiring her to periodically work Sundays and Wednesday evenings. On or about December 20,2003, Defendant terminated Ms. Hartsell when she refused to work a scheduled Sunday shift. Consequently, Ms. Hartsell was denied a reasonable religious accommodation and discharged because of her religion, Christian (Baptist).
8. From approximately December 2003 until January 2004, Defendant engaged in unlawful employment practices at its Franklin, North Carolina store, in violation of Section 703(a)(l) of Title VII, 42 U.S.C. § 2000e-2(a)(l). Specifically, Defendant subjected Rhonda Cowart to discrimination when it failed to accommodate her religion Christian (Baptist) and discharged her because ofher religious beliefs and practices. Ms. Cowart infonned Defendant, or Defendant was otherwise made aware, that Ms. Cowart could not work Sundays or Wednesday nights because she had a sincerely held religious beliefthat she should attend church services at those times. Beginning around December 2003, Defendant implemented a work schedule which conflicted with Ms.· Cowart's .religious beliefs and practices by requiring her to periodically work Sundays and Wednesday evenings. On or about January 5, 2004, Defendant terminated Ms. Cowart when she refused to work a scheduled Sunday shift. Consequently, Ms. Cowart was denied a reasonable religious accommodation and discharged because of her religion, Christian (Baptist).
9. The effect of the practices complained of in paragraphs 7 and 8 above has been to deprive Conda Hartsell and Rhonda Cowart of equal employment opportunities and otherwise adversely affect their status as employees because of their religion, Christian (Baptist).
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10. The unlawful employment practices complained of in paragraphs 7 and 8 above were intentional.
11. The unlawful employment practices complained of in paragraphs 7 and 8 above were done with malice or with reckless indifference to the federally protected rights of Conda Hartsell and Rhonda Cowart.
PRAYER FOR RELIEF
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Wherefore; the Commission respectfully requests that this Court: A. Grant a pennanent injunction enjoining Defendant, its officers, successors, assigns and all persons in active concert or participation with it, from refusing to reasonably accommodate the sincerely held religious beliefs ofemployees and engaging in any other employment practice which discriminates on the basis of religion. B. Order Defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for employees regardless of their religion, and which eradicate the effects ofits past and present unlawful employment practices. ·
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C. Order Defendant to make whole Conda Hartsell and Rhonda Cowart by providing appropriate backpay with prejudgment interest, in amounts to be detennined at trial, and other affinnative relief necessary to eradicate the effects ofthe unlawful employment practices described in paragraphs 7 and 8 above, including but not limited to reinstatement or front pay.
D. Order Defendant to make whole Conda Hartsell and Rhonda Cowart by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 7 and 8 above, in amounts to be determined at trial.
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E. Order Defendant to make whole Conda Hartsell and Rhonda Cowart by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices complained of in paragraphs 7 and 8 above, including but not limited to emotional pain, suffering, inconvenience, loss of enjoyment of life, loss of civil rights, and humiliation, in amounts to be detennined at trial.
F. Order Defendant to pay Conda Hartsell and Rhonda Cowart punitive damages for
its malicious and reckless conduct described in paragraphs 7 and 8 above, in amounts to be
determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public
1• nterest.
H. Award the Commission its costs of this action.
JURY TRIAL DEMAND
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The Conunission requests a jury trial on all questions of fact raised by its complaint.
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DATED this.the l~.s.Th day of August, 2005. Respectfully submitted, ERIC S. DREIBAND General Counsel JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS
Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 "L" Street, N.W. Washington, D.C. 20507
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········---- -- - - - - - - - - - - - - - - - - - - - -
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Acting Regional Attorney MARY YERSE Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Charlotte District Office 129 W. Trade Street, Suite 400 Charlotte, North Carolina 28202 Telephone: 704.344.6886 Facsimile: 704.344.6780 AITORNEYS FOR PLAINTIFF
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

KERR DRUG, INC.

)

)

Defendant.

)

)

CIVIL ACTION NO. 2:05cv211 CONSENT DECREE

The Equal Employment Opportunity Commission (the "Commission") instituted this

action pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. Section 2000e-5(f)(1) and (3) ("Title VII"), and Section 102 of the Civil

Rights Act of 1991, 42 U.S.C. § 1981a. The Commission’s complaint alleged that Defendant

Kerr Drug, Inc. discriminated against two aggrieved individuals (hereinafter referred to

collectively as “Charging Parties”) by refusing to reasonably accommodate their sincerely held

religious beliefs and discharging them because of their religion, Christian (Baptist).

The Commission, and Defendant, Kerr Drug, Inc. (“Defendant”), hereby stipulate to

jurisdiction of the Court over the parties and agree that the subject matter of this action is

properly before the Court.

The parties have advised this Court that they desire to resolve the allegations in the

Complaint without the burden, expense, and delay of further litigation.

It is therefore the finding of this Court, made on the pleadings and the record as a whole,

that: (1) the Court has jurisdiction over the parties and the subject matter of this action; (2) the

purpose and provisions of Title VII will be promoted and effectuated by the entry of the Consent Decree; and (3) this Decree resolves all matters in controversy between the parties as provided in paragraphs 1 through 17 below.
It is therefore ORDERED, ADJUDGED AND DECREED as follows: 1. Defendant shall not discriminate against any person on the basis of religion within the meaning of Title VII. 2. Defendant shall not discriminate or retaliate against any person because of opposition to any practice based on religion and made unlawful under Title VII of the Civil Rights Act of 1964 or because of the filing of a charge, the giving of testimony or assistance, or the participation in any investigation, proceeding or hearing under that statute. 3. Defendant shall pay the Charging Parties the total sum of sixty-five thousand dollars ($ 65,000) in settlement of the claims raised in this action. Defendant shall make payment by issuing a check payable to each Charging Party in an amount agreed upon by the Commission and Defendant. Defendant shall mail the check to each Charging Party at an address provided by the Commission. Payment shall be made within fifteen (15) days after the Court approves this Consent Decree. Within ten (10) days after the checks have been sent, Defendant shall mail to Lynette A. Barnes, Regional Attorney, Equal Employment Opportunity Commission, 129 W. Trade Street, Suite 400, Charlotte N.C., 28202, a copy of the checks and proof of delivery to each Charging Party. 4. Payment of the amount agreed upon in paragraph 3 is conditioned upon Defendant counsel’s receipt of a fully executed Release and Settlement Agreement from each Charging Party. Defendant agrees to pay up to two hundred dollars ($200) per Charging Party for each
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Charging Party to retain private counsel for the sole purpose of reviewing Defendant’s release. Payment shall be made directly to the attorney chosen and designated by each Charging Party.
5. Within ten (10) days of the entry of this Decree by the Court, Defendant shall eliminate from the employment records of the Charging Parties any and all documents, entries, or references of any kind relating to the facts and circumstances which led to the filing of EEOC Charge Numbers 141-2004-01349 and 141-2004-01346 and the related events that occurred thereafter. Within fifteen (15) days of the entry of this Decree by the Court, Defendant shall report compliance with this provision to the EEOC.
6. Defendant agrees to provide both Charging Parties with a positive letter of reference in the form of the letters attached hereto, marked as Appendix A and Appendix B. In addition, if Defendant receives any inquiries regarding the employment of either Charging Party, in lieu of an oral response, Defendant shall provide a copy of the appropriate aforementioned letters. Within ten (10) days of responding to any inquiry regarding the employment of either Charging Party, Defendant shall report compliance to the Commission, including the name and address of the person or entity to whom the letter was provided.
7. Within thirty (30) days of the entry of this Decree by the Court, Defendant shall adopt a formal, written procedure for addressing requests for religious accommodation received from employees. Defendant shall distribute a copy of the written procedure to each current manager and supervisor within the aforementioned 30-day time period. Within forty-five (45) days of the entry of this Decree, Defendant shall report compliance to the Commission.
8. During the term of this Decree, Defendant shall provide an annual training program to all of its managers and supervisors in Defendant’s District One. The stores that are located within District One are identified on the attached Appendix C. The training program
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shall include an explanation of the prohibition against religious discrimination, the requirements for religious accommodation and the prohibition against retaliation under Title VII of the Civil Rights Act of 1964. The training program shall also include an explanation of Defendant’s procedure referenced in paragraph 7 above, and an explanation of the rights and responsibilities of managers, supervisors, and employees under Title VII and Defendant’s procedure.
The first training program shall be completed within sixty (60) days after entry of the Decree by the Court. Thereafter, Defendant shall conduct training for its managers and supervisors in Defendant’s District One at approximately 1-year intervals throughout the term of this Decree. At least fifteen (15) days prior to each training program, Defendant shall provide the Commission with an agenda for the training program. Within ten (10) days after completion of the training program, Defendant shall certify to the Commission the specific training that was undertaken and shall provide the Commission with a roster of all persons in attendance.
9. During the term of this Decree, Defendant shall distribute the procedure referenced in paragraph 7 to all newly hired or promoted managers and supervisors in District One at the time of hire or at the time of promotion into a manager or supervisor position. Defendant agrees to provide the training referenced in paragraph 8 above, to all newly hired managers or supervisors within fifteen (15) days of hire or promotion into a manager or supervisor position.
10. Beginning within thirty (30) days after the entry of this Decree by the Court, and continuing throughout the term of this Decree, Defendant shall conspicuously post the attached Employee Notice, marked Appendix D, hereby made a part of this Decree, in a place where it is visible to employees at its store located in Franklin, North Carolina (“Franklin store”). If the Notice becomes defaced or unreadable, Defendant shall replace it by posting another copy of the
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Notice. Within forty-five (45) days after entry of this Decree, Defendant shall notify the Commission that the Notice has been posted pursuant to this provision.
11. During the term of this Consent Decree, Defendant shall provide the Commission with reports at six (6)-month intervals, with the first being due four (4) months after approval by the Court of this Decree. The reports shall include the following information:
A. The identities of all individuals in District One who requested a religious accommodation, including by way of identification each person’s name, last known telephone number and address, social security number, and job title;
B. For each individual identified in 11.A. above, provide a detailed description of the individual’s request;
C. For each individual identified in 11.A. above, provide a detailed description of what action, if any, Defendant took in response to the request, and a description of all proposed accommodations;
D. For each individual identified in 11.A. above, if the request for a religious accommodation was denied, provide all reasons why the request was denied.
In the event there is no activity to report pursuant to this paragraph, Defendant shall send the Commission a “negative” report indicating no activity.
12. The Commission may review compliance with this Decree. As part of a review for compliance with the notice-posting provision in paragraph 10, the Commission may inspect Defendant’s Franklin, North Carolina store and interview employees, supervisors and managers.
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Upon arrival at the Franklin store, the Commission’s representative shall notify the individual in charge of the Franklin store on the day of the inspection.
13. If anytime during the term of this Decree, the Commission suspects that Defendant is in violation of the Decree, other than a violation of paragraph 10, the Commission shall provide Defendant with twenty-four (24) hours notice of its intent to conduct an inspection at Defendant’s store(s). The Commission’s representative shall notify Defendant’s Vice President of Human Resources, Briony Voorhees, of the upcoming inspection. Notification shall be made by email to Ms. Voorhees at an email address to be provided to Lynette A. Barnes, Regional Attorney, Equal Employment Opportunity Commission, 129 W. Trade Street, Suite 400, Charlotte N.C., 28202. After the inspection, the Commission shall give notice of any alleged violation(s) to Defendant. Defendant shall have twenty (20) days in which to investigate and respond to the allegations. Thereafter, the parties shall then have a period of twenty (20) days or such additional period as may be agreed upon by them, in which to engage in negotiation regarding such allegations before the Commission exercises any remedy provided by law. The parties agree that this Decree does not supersede the procedural requirements of 29 C.F.R. §§ 1601.6 to 1601.17 with respect to receipt and investigation of charges of discrimination.
14. The term of this Decree shall be for two (2) years from its entry by the Court. 15. All reports or other documents sent to the Commission by Defendant pursuant to this Decree shall be sent to: Lynette A. Barnes, Regional Attorney, Equal Employment Opportunity Commission, 129 W. Trade Street, Suite 400, Charlotte N.C., 28202. 16. Each party shall bear its own costs and attorney’s fees. 17. This Court shall retain jurisdiction of this cause for purposes of monitoring compliance with this Decree and entry of such further orders as may be necessary or appropriate.
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Signed: February 15, 2006 7

The parties jointly request that the Court approve and enter the Consent Decree:

EQUAL EMPLOYMENT

KERR DRUG, INC., Defendant

OPPORTUNITY COMMISSION, Plaintiff

JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

s/ Frank P. Ward, Jr. FRANK P. WARD, JR. (N.C. Bar No. 4560) e-mail: fward@maupintaylor.com
s/ Joshua M. Krasner JOSHUA M. KRASNER (N.C. Bar No. 19132) e-mail: jkrasner@maupintaylor.com

s/ Lynette A. Barnes LYNETTE A. BARNES Regional Attorney (N.C. Bar No. 19732) e-mail: lynette.barnes@eeoc.gov

MAUPIN TAYLOR, P.A. 3200 Beechleaf Court, Suite 500 Post Office Drawer 19764 Raleigh, NC 27619-9764 Telephone: 919.981.4000

s/ Mary M. Ryerse MARY M. RYERSE (S.C. Bar No. 68387) Trial Attorney e-mail: mary.ryerse@eeoc.gov

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Charlotte District Office 129 West Trade Street, Suite 400 Charlotte, North Carolina 28202 Phone: 704.344.6886

Dated this 10th day of February 2006.

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 CM/ECF - LIVE DATABASE - NCWD - Docket Report

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U.S. District Court Western District of North Carolina (Bryson City)
CIVIL DOCKET FOR CASE #: 2:05-cv-00211

CLOSED, REFUSE

Equal Employment Opportunity Commission v. Kerr Drug, Inc. Assigned to: Lacy Thornburg Referred to: Dennis Howell Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 08/16/2005 Date Terminated: 02/15/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Lynette A. Barnes Equal Employment Opportunity Commission Charlotte District Office 129 W. Trade Street, Suite 400 Charlotte, NC 28202 704.344.6878 Fax: 704.344.6780 Email: lynette.barnes@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Margaret Ryerse EEOC U.S. Equal Employment Opportunity Commission 129 W. Trade Street, Suite 400 Charlotte, NC 28202 704-344-6886 Fax: 704-344-6780 Email: mary.ryerse@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric S. Dreiband Equal Employment Opportunity Commission 1801 L Street, N.W. 7th Floor Washington, DC 20507 202/663-4736 ATTORNEY TO BE NOTICED

Gwendolyn Young Reams Equal Employment Opportunity Commission

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V. Defendant Kerr Drug, Inc.

1801 L Street, N.W. 7th Floor Washington, DC 20507 202/663-4736 ATTORNEY TO BE NOTICED
James L. Lee EEOC 1801 "L" St., NW Washington, DC 20507 ATTORNEY TO BE NOTICED
represented by Frank P. Ward, Jr. Maupin Taylor, P.A. P.O. Drawer 19764 Raleigh, NC 27619-9764 919/981-4000 Fax: 919/981-4300 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Mark Krasner Williams Mullen Maupin Taylor P.O. Box 19764 Raleigh, NC 27619-9764 919-981-4069 Fax: 919-981-4300 Email: jkrasner@williamsmullen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/16/2005
08/22/2005 08/22/2005 09/23/2005

#

Docket Text

1 COMPLAINT against Kerr Drug, Inc. , filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Barton, Elizabeth) (Entered: 08/22/2005)
Judge Lacy Thornburg and Dennis Howell added. Judge Dennis Howell no longer assigned to case. (Barton, Elizabeth) (Entered: 08/22/2005)
3 NOTICE OF CASE REASSIGNMENT (Barton, Elizabeth) (Entered: 08/22/2005)
4 WAIVER OF SERVICE Returned Executed by Equal Employment Opportunity Commission. Kerr Drug, Inc. waiver sent on 8/17/2005, answer due 10/17/2005. (Barton, Elizabeth) (Entered: 09/29/2005)

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10/14/2005 10/14/2005 11/28/2005 12/08/2005
01/25/2006 02/10/2006
02/10/2006 02/15/2006

6 ANSWER to Complaint by Kerr Drug, Inc.(Barton, Elizabeth) (Entered: 10/14/2005)
7 CORPORATE Disclosure Statement by Kerr Drug, Inc.(Barton, Elizabeth) (Entered: 10/14/2005)
8 CERTIFICATION of initial attorney conference and discovery plan by Equal Employment Opportunity Commission, Kerr Drug, Inc.(Barton, Elizabeth) (Entered: 12/02/2005)
9 SCHEDULING ORDER: Estimated Trial Time: 3-5 days Discovery due by 5/1/2006. Motions due by 6/1/2006. Mediation deadline set for 5/15/2006. Jury Trial to commence during 1st civil trial term beginning on or after 10/10/2006 10:00 AM in Bryson City Courtroom before Lacy Thornburg. Signed by Judge Dennis Howell on 12/8/05. (Barton, Elizabeth) (Entered: 12/08/2005)
10 REPORT of Mediation - CASE SETTLED - proposed Consent Decree forthcoming.(Barton, Elizabeth) (Entered: 01/25/2006)
11 NOTICE by Equal Employment Opportunity Commission, Kerr Drug, Inc. Notice of Electronic Filing of Proposed Consent Decree (Attachments: # 1 Proposed Order Consent Decree# 2 Appendix Consent Decree Appendices A-D)(Ryerse, Mary) (Entered: 02/10/2006)
Proposed document submitted to Judge Lacy Thornburg. (Ryerse, Mary) (Entered: 02/10/2006)
12 CONSENT DECREE. Signed by Judge Lacy Thornburg on 2/15/06. (Barton, Elizabeth) (Entered: 02/15/2006)

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