Case 4:04-cv-00846-CAS Document 1-1 Filed 07/08/2004 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

FILED

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.

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)

)

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ST. LOUJS

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CONVERGYS CUSTOMER MANAGEMENT )

GROUP, INC.,

)

COMPLAINT

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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 provide appropriate relief to Ahmet Demerelli who was adversely affected by such practices. The Commission alleges that Convergys Customer Management Group, Inc. Home failed and refused to accommodate Demerelli's disability, brittle bone disease, and terminated him because of his disability.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII ofthe Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-5(f)(l) and (3), and pursuant to Section 102 ofthe Civil Rights Act of 1991,42 U.S.C. § 1981a.

Case 4:04-cv-00846-CAS Document 1-1 Filed 07/08/2004 Page 2 of 5
2. The employment practices alleged to be unlawful were being committed within the jurisdiction of the United States District Court for the Eastern District of Missouri.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(l). 4. At all relevant times, Defendant, Convergys Customer Management, Inc., has continuously been an Ohio corporation doing business in the State of Missouri and the City of Hazelwood, 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 Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h). 6. At all relevant times, Defendant has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Ahmet Demerelli filed a charge with the Commission alleging violations of Title I of the ADA by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.
2

Case 4:04-cv-00846-CAS Document 1-1 Filed 07/08/2004 Page 3 of 5
8. Since at least January 2001, Defendant has engaged in unlawful employment practices at its facility in Hazelwood, Missouri, in violation of Section 102(a) of Title I ofthe ADA, 42 U.S.C. §12112(a). Defendant failed and refused to provide reasonable accommodation for Demerelli's disability and terminated him because of his disability, brittle bone disease.
9. The effect of the practices complained of in paragraph 8 above has been to deprive Ahmet Demerelli of equal employment opportunities and otherwise adversely affect his status as an employee, because of his 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 done with malice or with reckless indifference to the federally protected rights of Ahmet Demerelli.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court:
A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from discharging employees because of disability or engaging in any other employment practice which discriminates on the basis of disability.
B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for qualified individuals with
3

Case 4:04-cv-00846-CAS Document 1-1 Filed 07/08/2004 Page 4 of 5

disabilities, and which eradicate the effects of its past and present unlawful employment practices.

C. Order Defendant to make whole Ahmet Demerelli by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including, but not limited to, reinstatement.

D. Order Defendant to make whole the Ahmet Demerelli by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 8 above, including reimbursement for medical expenses, in amounts to be determined at trial.

E. Order Defendant to make whole the Ahmet Demerelli by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 8 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
F. Order Defendant to pay punitive damages to Ahmet Demerelli for its malicious and reckless conduct, as described in paragraph 8 above, in amounts to be determined at trial.

G. public interest.

Grant such further relief as the Court deems necessary and proper in the

H. Award the Commission its costs of this action.

4

Case 4:04-cv-00846-CAS Document 1-1 Filed 07/08/2004 Page 5 of 5

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
JAMESL. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

ROBERT G. JOHN

Regional Attorney

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BARBARA

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Supervisory Trial

Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office Robert A. Young Federal Bldg. 1222 Spruce, Room 8.100 St. Louis, MO 63103 (314) 539-7916

5

 
 Case 4:04-cv-00846-CAS Document 7 Filed 08/10/2004 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

Plaintiff,

)

)

and

)

)

AHMET DEMERELLI

)

Plaintiff-Intervener,

)

)

vs.

)

)

CONVERGYS CUSTOMER MANAGEMENT )

GROUP, INC.,

)

Defendant.

)

Case No. 4:04CV846 TIA Jury Trial Demanded

PLAINTIFF-INTERVENER’S COMPLAINT Plaintiff hereby brings this action against Defendant for the following reasons:
JURISDICTION AND VENUE 1. Plaintiff is an individual who resides in St. Louis County, Missouri. 2. Defendant is a corporation organized under the laws of the State of Ohio doing business within the State of Missouri and the City of Hazelwood, and has continuously had at least fifteen employees. 3. Plaintiff asserts these claims pursuant to Section 107(a) of the Americans with Disabilities Act (ADA), 42 U.S.C. §12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e5(f)(1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Plaintiff invokes the jurisdiction of this Court pursuant to 28 U.S.C. § 1331, 28 U.S.C. §1332, and the Court’s pendent jurisdiction.

Case 4:04-cv-00846-CAS Document 7 Filed 08/10/2004 Page 2 of 3
4. Venue is proper because Defendant resides in the Eastern District of Missouri within the meaning of 28 U.S.C. § 1391(b) and (c) and because the discriminatory actions occurred in St. Louis County, State of Missouri in the Eastern District of Missouri.
5. Plaintiff filed a timely Charge of Discrimination with the Equal Employment Opportunity Commission alleging that Defendant engaged in the discriminatory actions that are being raised in this lawsuit, or alternatively, the allegations of Plaintiff’s lawsuit would have arisen from the investigation of Plaintiff’s Charge of Discrimination.
6. Plaintiff has fulfilled all conditions precedent to the bringing of this claim and has duly exhausted all administrative procedures in accordance with the law prior to instituting this lawsuit.
COUNT I VIOLATION OF THE AMERICANS WITH DISABILITIES ACT 7. Plaintiff incorporates by reference the allegations contained in paragraphs 1-6 into Count I of his Complaint. 8. That since at least January 2001, the Defendant failed to provide reasonable accommodations for Demerelli’s disability, brittle bone disease. 9. That on or about June 27, 2002, the Defendant terminated Demerelli because of his disability. 10. Because of the Defendant’s discriminatory practices Demerelli has been deprived of equal employment opportunities and otherwise adversely affect his status as an employee, because of his disability. 11. The unlawful employment practices Defendant committed were intentional. 12. The unlawful employment practices in which Defendant engaged were done with malice or reckless indifference to Plaintiff’s rights

Case 4:04-cv-00846-CAS Document 7 Filed 08/10/2004 Page 3 of 3
13. As a direct result of the discriminatory and unlawful practices of the Defendant, Demerelli has been caused to suffer and sustain damages, including but not limited to loss of past and future wages and benefits including prejudgment interest, in amounts to be determined at trial, emotional distress, humiliation and suffering, mental anguish, a detrimental employment record, and other non-pecuniary losses.
14. Plaintiff is entitled to recover all of his costs, expenses, expert witness fees, and attorneys’ fees incurred in this matter as well as other appropriate equitable relief.
WHEREFORE, Plaintiff prays for judgment against Defendant for actual damages, compensatory damages, and punitive damages, all costs, expenses, expert witness fees and attorneys’ fees incurred herein, reinstatement, appropriate equitable relief, for interest at the highest lawful rate and for such other relief as this Court deems just and proper.
Respectfully submitted, LAMPIN, KELL, FLACH & FAGRAS
_/s/ Michael J. Fagras______________ Michael J. Fagras ARN 52285 Attorney for Plaintiff-Intervener 4700 Mexico Road St. Peters, Missouri 63304 (636) 498-4000 Telephone (636) 949-8880 Facsimile

 
 Case 4:04-cv-00846-CAS Document 17 Filed 11/16/2004 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

Plaintiff,

)

)

and

)

)

AHMET DEMERELLI

)

Plaintiff-Intervener,

)

)

vs.

)

)

CONVERGYS CUSTOMER MANAGEMENT )

GROUP, INC.,

)

Defendant.

)

Case No. 4:04CV846 CAS Jury Trial Demanded

PLAINTIFF-INTERVERNER’S MOTION TO INTERVENE COMES NOW Plaintiff, by and through counsel, and for his Plaintiff-Intervener’s Motion to Intervene states to the Court as follows: 1. Plaintiff is an indispensable party to this action. 2. Plaintiff filed a timely Charge of Discrimination with the Equal Employment Opportunity Commission alleging that Defendant engaged in the discriminatory actions that are being raised in this lawsuit, or alternatively, the allegations of Plaintiff’s lawsuit would have arisen from the investigation of Plaintiff’s Charge of Discrimination. 3. Plaintiff has fulfilled all conditions precedent to the bringing of this claim and has duly exhausted all administrative procedures in accordance with the law prior to instituting this lawsuit. 4. That Plaintiff-Intervener will be unduly prejudiced if he is not allowed to intervene in the above cause of action.

Case 4:04-cv-00846-CAS Document 17 Filed 11/16/2004 Page 2 of 2

5. WHEREFORE, Plaintiff prays this Court allow him to intervene in the above entitled cause and for such other orders as this Court deems just and proper.

Respectfully submitted,
LAMPIN, KELL, FAGRAS, LINSON, CUSTER & STAEBELL

_/s/ Michael J. Fagras______________ Michael J. Fagras ARN 52285 Attorney for Plaintiff-Intervener 4700 Mexico Road St. Peters, Missouri 63376 (636) 498-4000 Telephone (636) 949-8880 Facsimile

CERTIFICATE OF SERVICE
The above hereby certifies that on the 16th day of November, 2004, the foregoing was filed electronically with the Clerk of the Court, to be served by operation of the Court's electronic filing system upon the following:

Barbara Seeley, EEOC Mary Bonacorsi, Thompson Coburn, LLP

_/s/ Michael J. Fagras_______________

 
 Case 4:04-cv-00846-CAS Document 18 Filed 12/10/2004 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

CONVERGYS CUSTOMER

)

MANAGEMENT GROUP, INC.,

)

)

Defendant.

)

No. 4:04-CV-846 CAS

MEMORANDUM AND ORDER This matter is before the Court on the motion of movant Ahmet Demerelli to intervene in this matter. Defendant Convergys Customer Management Group, Inc. ("Convergys") did not file a motion in opposition. For the following reasons, the Court will grant the motion. This action was commenced on July 8, 2004, when the Equal Employment Opportunity Commission ("EEOC") filed a complaint against Convergys. The complaint alleges that Convergys violated Title I of the American with Disabilities Act of 1991, 42 U.S.C. § 12112(a) ("ADA"), by committing unlawful employment practices with respect to its employee Ahmet Demerelli, by failing to provide reasonable accommodation for Demerilli's disability and terminated him because of his disability. On August 10, 2004, Demerelli filed an intervenor complaint without leave of court. This case was reassigned to the undersigned on September 10, 2004. Demerilli filed his motion to intervene on November 16, 2004.1 The complaint filed by Demerelli alleges violation of the Americans with Disabilities Act based on the same conduct as alleged in the original complaint.

1The Court notes that movant's motion to intervene does not have an accompanying memorandum of law with citations of authorities supporting the intervention or cite any authorities in the motion. See E.D. Mo. L.R. 4.01(A). Nevertheless, the Court will grant the motion.

Case 4:04-cv-00846-CAS Document 18 Filed 12/10/2004 Page 2 of 3
Under 42 U.S.C. § 2000e-5(f)(1), an aggrieved employee has an absolute right to intervene in a civil action brought by the EEOC. 42 U.S.C. § 2000e-5(f)(1); see EEOC v. Contour Chair Lounge Co., 596 F.2d 809 (8th Cir. 1979). Federal Rule of Civil Procedure 24(a), however, imposes the requirement that the application to intervene be timely. Nevilles v. EEOC, 511 F.2d 303 (8th Cir. 1975). Thus, plaintiff’s motion should be analyzed under Federal Rule of Civil Procedure 24(a). Rule 24(a)(2) provides that a timely motion to intervene shall be granted if: (i) the proposed intervenor claims an interest relating to the property or transaction which is the subject of the action; (ii) the interest may be impaired; and (iii) the interest is not adequately represented by an existing party to the action. See Jenkins by Jenkins v. State of Missouri, 78 F.3d 1270, 1274 (8th Cir. 1996); Kansas Public Employees Retirement System v. Reimer & Koger Assocs., Inc., 60 F.3d 1304, 1307 (8th Cir. 1995). Further, as a threshold matter, a proposed intervenor under Rule 24 must have Article III standing. Curry v. Regents of the Univ. of Minn., 167 F.3d 420, 422 (8th Cir. 1999). Standing under Article III of the Constitution requires that a would-be litigant make a showing of three elements: (i) an "injury in fact", which is an invasion of a legally protected interest that is concrete, particularized and either actual or imminent; (ii) the existence of a causal connection between the alleged injury and the conduct being challenged; and (iii) redressability; i.e., that the injury is likely to be remedied by a favorable decision. Id.
The Court finds that movant Ahmet Demerelli has standing because he alleges an injury in fact, i.e., a violation of the ADA, there is a causal connection between his alleged injury and the conduct of the defendant being challenged, and the injury is likely to be remedied by a favorable decision. The Court also finds that Demerelli's motion to intervene is timely, and that he meets the elements of Rule 24(a). The first element is easily satisfied, because Demerelli claims an interest in the resolution of claims that his employer failed to provide reasonable accommodations for his
2

Case 4:04-cv-00846-CAS Document 18 Filed 12/10/2004 Page 3 of 3
disability, brittle bone disease, and terminated him because of it. The second and third elements are also satisfied, as the EEOC is entrusted with the obligation to assert the public interest with respect to violations of the ADA, while Demerelli is interested in exercising his rights under all available statutory remedies. Demerelli's rights may be impaired if he is not permitted to intervene to assert these interests. Therefore, the motion to intervene should be granted.
Accordingly, IT IS HEREBY ORDERED that movant Ahmet Demerelli's motion to intervene is GRANTED. [Doc. 17] IT IS FURTHER ORDERED that the Clerk of Court shall amend the caption of this case to read as follows: Equal Employment Opportunity Commission, plaintiff and Ahmet Demerelli, plaintiff/intervenor v. Convergys Customer Managment Group, Inc., No. 4:04-CV-846 CAS. The parties shall use this caption on all future pleadings. IT IS FURTHER ORDERED that defendant shall file its response to plaintiff/intervenor's complaint within twenty (20) days of the date of this memorandum and order.

Dated this 10th day of December, 2004.

CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

3

 
 Case 4:04-cv-00846-CAS Document 68 Filed 01/19/2006 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

AHMET YIGIT DEMIRELLI,

)

)

Plaintiff-Intervenor,

)

)

v.

)

)

CONVERGYS CUSTOMER,

)

MANAGEMENT GROUP, INC.,

)

)

Defendant.

)

No. 4:04-CV-846 CAS

PARTIAL JUDGMENT In accordance with the memorandum and order of this date and incorporated herein, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that partial judgment is GRANTED in favor ofdefendant Convergys Customer Management Group, Inc. and against plaintiff Equal Employment Opportunity Commission and plaintiff-intervenor Ahmet Yigit Demirelli on plaintiff’s American with Disabilities Act claims that defendant failed to reasonably accommodate his request for a parking space, to take a headset home, and to have an assigned seat.

Dated this 19th day of January, 2006.

CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

 
 Case 4:04-cv-00846-CAS Document 67 Filed 01/19/2006 Page 1 of 21

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

AHMET YIGIT DEMIRELLI,1

)

)

Plaintiff-Intervenor,

)

)

v.

)

)

CONVERGYS CUSTOMER

)

MANAGEMENT GROUP, INC.

)

)

Defendant.

)

No. 4:04-CV-846 CAS

MEMORANDUM AND ORDER This matter is before the Court on the parties’ cross motions for summary judgment. For the following reasons the Court will grant in part and deny in part defendant’s motion for summary judgment and deny plaintiff’s motion for summary judgment without prejudice. I. Background The Equal Employment Opportunity Commission (“EEOC”) filed this complaint against defendant Convergys Customer Management Group, Inc. (“Convergys”).2 The complaint alleges that Convergys violated Title I of the American with Disabilities Act of 1991, 42 U.S.C. § 12112(a)

1Plaintiff-Intervener Ahmet Yigit Demirelli’s name is spelled various ways in the complaint and motions filed by both parties. Plaintiff EEOC has confirmed to the Court that the correct spelling is Demirelli, not Demerelli, and the Court will use the correct spelling.
2The EEOC is authorized to bring this action pursuant to 42 U.S.C. § 12117(a), which incorporates by reference 42 U.S.C. § 2000e-5(f)(1).

Case 4:04-cv-00846-CAS Document 67 Filed 01/19/2006 Page 2 of 21
("ADA"), by committing unlawful employment practices with respect to its former employee Ahmet Demirelli by failing to provide reasonable accommodation for Demirelli's disability and terminating Demirelli because of his disability. Demirelli was granted leave to intervene in this action on December 10, 2004.
The EEOC and Convergys filed cross motions for summary judgment. In its motion, Convergys asserts that Demirelli is not qualified with or without reasonable accommodation for his job and that his dismissal was legitimate and non-discriminatory. The EEOC asserts in its motion that it is entitled to partial summary judgment because the undisputed facts show that Convergys’s affirmative defense of after-acquired evidence fails as a matter of law. II. Summary Judgment Standard
The standards applicable to summary judgment motions are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the information before the court shows “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Coop., Inc., 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor). Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on a material factual issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Once the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of
2

Case 4:04-cv-00846-CAS Document 67 Filed 01/19/2006 Page 3 of 21
material fact exists. Fed. R. Civ. P. 56(e); Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir. 2000). The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A dispute about a material fact is “genuine” only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Herring, 207 F.3d at 1029 (quoting Anderson, 477 U.S. at 248). A party resisting summary judgment has the burden to designate the specific facts that create a triable question of fact. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004). “Self-serving, conclusory statements without support are not sufficient to defeat summary judgment.” Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993)
In passing on a motion for summary judgment, it is not the court’s role to decide the merits. The court should not weigh evidence or attempt to determine the truth of a matter. Rather, the court must simply determine whether a genuine issue of material fact exists. Bassett v. City of Minneapolis, 211 F.3d 1097, 1107 (8th Cir. 2000).
The Eighth Circuit has stated that summary judgment should seldom be used in cases alleging employment discrimination. Kells v. Sinclair Buick - GMC Truck, Inc., 210 F.3d 827, 830 (8th Cir. 2000). Summary judgment is not appropriate in employment discrimination cases unless all the evidence points one way and is susceptible of no reasonable inference of discrimination. Breeding, 164 F.3d 1151, 1156 (8th Cir. 1999) (citation and internal quotation omitted). Summary judgment is appropriate, however, if the plaintiff has failed to present evidence sufficient to create a jury question as to an essential element of his claim. Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000) (citing Chock v. Northwest Airlines, Inc., 113 F.3d 861, 865 (8th Cir. 1997)).
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Case 4:04-cv-00846-CAS Document 67 Filed 01/19/2006 Page 4 of 21
III. Facts A. Background The Court accepts the following facts as true for purposes of summary judgment. Yigit
Demirelli suffers from Osteogenesis Imperfecta, commonly known as brittle bone disease.3 As a result, Demirelli has had approximately fifty fractures and his teeth are in very poor condition. He is not able to walk and uses a manual wheelchair. He is not supposed to lift heavy weights or wheel his chair around excessively. He has difficulty opening doors. He suffers from pain on a regular basis.
At the time he was hired by Convergys, Demirelli had graduated from high school and completed a semester at the University of Missouri St. Louis. Demirelli was employed by Convergys from January 15, 2001 until June 27, 2002 as a Customer Service and Problem Resolution Representative (“Agent” or “Associate”).
Convergys is located at the Village Square Shopping Center in Hazelwood, Missouri. Convergys serves as an in-bound call center handling calls from customers of Convergys’s clients. For example, if a company set up a “1-800" number for customers to participate in a promotion or for customer service assistance, Convergys would contract with that company to accept those inbound calls. Because Convergys is hired to take calls directed to its clients, it is necessary that Convergys sufficiently staff its projects to meet projected call volume. Employees are scheduled to work based on the company’s business needs and projected call volume. To determine the necessary
3Osteogenesis imperfecta is a “condition marked by defective bone formation, and hence, fragility of the bones. Fractures occur without excessive strain or violence, in childhood, infancy, or even before birth.” 4 J.E. SCHMIDT, ATTORNEYS’ DICTIONARY OF MEDICINE AND WORD FINDER 117 (2004).
4

Case 4:04-cv-00846-CAS Document 67 Filed 01/19/2006 Page 5 of 21
level of staffing, Convergys’s clients provide the company data forecasting call volume. Therefore,
Convergys is expected to appropriately staff the project to handle the forecasted call volume.
At all times during Demirelli’s employment, Convergys had a policy regarding reasonable
accommodations for disabled employees. The policy stated:
Federal regulation and Convergys policy require that reasonable accommodations be made for physical and mental disabilities of qualified employees and applicants in all aspects of employment when a need is identified. Hires, transfers, upgrades, or promotions may not be denied to individuals with disabilities because of the need to make reasonable accommodations.
The extent of Convergys’[sic] accommodation obligations and the reasonableness of any particular accommodation are determined on a case-by-case basis, considering various factors, including cost, the organization’s size, and the effect on how work is performed. Convergys requests advice and assistance from both internal and external sources when exploring the feasibility of structural and nonstructural accommodations.
(Demirelli’s Dep. Ex. 25 ). Convergys’s Code of Business Conduct provides:
Convergys is committed to providing a work environment that is free from unlawful discrimination. . . . Specifically, Convergys is committed to a work environment that is free from discrimination on the basis of race, religion, color, creed, national origin, age, sex, disability, veteran status, or other unlawful factors. . . . If you have complaints of discrimination . . . report it to your supervisor or Human Resources representative. Complaints of offensive or improper conduct are taken seriously and investigated thoroughly.
(Demirelli’s Dep. Ex. 22). Demirelli acknowledged receiving these documents.
B. Demirelli’s Working Environment
1. Schedule
Convergys hired Demirelli to provide technical support to digital subscriber line (“DSL”)
customers of a Convergys client. Demirelli worked on the evening shift. Generally, agents employed
by Convergys do not work on a fixed shift. Instead, they work a flexible schedule with start times
beginning in fifteen minute increments, which varied depending on the projected call volume.
5

Case 4:04-cv-00846-CAS Document 67 Filed 01/19/2006 Page 6 of 21
Demirelli received a thirty minute lunch break with a three minute grace period for returning from lunch. Demirelli remained on Convergys’s premises for meal breaks.
2. Parking Demirelli lived about twenty to twenty-five minutes from Convergys. At first, he left for work approximately forty-five minutes before his start time in order to get to work on time. Later he left home an hour before his start time in order to get to work on time. Even when Demirelli left for work an hour before his start time, sometimes he was tardy. When he told his supervisors that he had left an hour early but had a problem find parking, he was told to leave for work earlier. Convergys’s busiest time of the day in terms of call volume was from 2:00 pm to 6:00 p.m. During that time, Convergys scheduled the most agents to work. When Demirelli came to work at or around 3:00 p.m., there was a lot of congestion. At the time Demirelli worked for Convergys, the shopping center where Convergys is located had two handicapped parking spaces which were marked “van-accessible,” meaning they were large enough for a handicapped van to be parked there. Demirelli drove a handicapped van which had a motorized lift to allow him to get in and out of the van in his wheelchair. Because he had difficulty finding a vacant parking space to park his van, Demirelli usually parked some distance away from Convergys.
3. Seating For at least two months beginning in January 2001, while Demirelli was supervised by Loretta Hill, he received an assigned workstation near Hill and the door. Demirelli’s name was on the cubicle. If someone was sitting in Demirelli’s workstation when he arrived at work, he would tell Hill and she would make the person move to another workstation. After approximately two months, Demirelli moved to another workstation. In the second workstation, people began sitting in Demirelli’s workstation again and eventually he was told to find any open seat. By April 18, 2002,
6

Case 4:04-cv-00846-CAS Document 67 Filed 01/19/2006 Page 7 of 21
Demirelli was sitting in a third workstation that was available to him every day located approximately five to ten feet from the entrance of the work area. Demirelli stated this third workstation was the most accessible place to sit where he had the least difficulty getting to the door. This third seat was located in the training area and Demirelli’s use of the workstation was not approved by his supervisors.
4. Headsets When an agent reported to work, he logged on to his computer which was connected to the timekeeping system (“TKS”). The agents also logged on to their telephones, which were connected to the call management system (“CMS”). Agents at Convergys are required to use a headset in order to log on to the phone system. It was not necessary to have a headset to log in to the company’s timekeeping system, which showed that the employee was present at work as scheduled. Employees could actually log in to work in the timekeeping system at any computer station anywhere on the production floor, including at a supervisor’s desk. Generally, agents logged on to CMS and TKS at the same time. They were not instructed as to which system to log on to first. Agents were required to log in to CMS within three minutes of logging in to TKS. Although it was possible for an agent to log on to TKS and CMS at any supervisor’s desk, an agent had to be at his own workstation in order to start work. If an agent failed to start work after logging in, he could be disciplined. Therefore, agents generally logged in to TKS and CMS at their own workstations. No one told Demirelli that he could log on to TKS only so that he could be counted as present. Because the headsets were detachable, sometimes a headset would not be in an employee’s cubicle despite Convergys’s policy that headsets could not be removed from the workstations. Hill testified that sometimes Demirelli asked for assistance in finding a headset and it took her less than
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a minute to retrieve headsets for agents who needed them. Convergys also denied Demirelli’s request
to take a headset home, because of its policy that headsets not be removed from cubicles.
C. Convergys’s attendance policy
During Demirelli’s employment, Convergys had in place a no-fault attendance policy. The
policy provides:
We are working hard to make your employment with Convergys both challenging and rewarding. In return, we have high expectations of you as an Associate- to show up for work on-time every day so that you can provide the best possible customer service to our clients.
. . . .
Tardiness is defined as working less than 100%, but greater than 75% of the scheduled shift. An Associate is considered tardy when he or she:  Leaves work prior to the end of the scheduled shift (3 minutes or more)  Arrives to work after the start of the scheduled shift (3 minutes or more)  Returns late from lunch or break (3 minutes or more) Multiple tardies can be incurred in a single day, even if the Associate works in excess of 75% of the scheduled shift.
Like the absence policy, the tardiness policy is based on a rolling 365-day calendar. If you are tardy:  Ten (10) times- Will result in documented verbal reminder with specific
behavioral expectations.  Twelve (12) times- Will result in a documented verbal reminder with specific
behavioral expectations.  Fourteen (14) times or failure to meet behavioral expectations- You may be
terminated.  Patterned tardiness will also result in disciplinary action.
(Ex. 27 to Demirelli’s Dep.) (emphasis in original). Convergys’s attendance policy also provided that
eight absences would result in a written warning and an employee could be terminated upon accrual
of ten absences. In addition, if an employee was absent from work and did not call into Convergys’s
attendance telephone line (known as a No Call/No Show) the employee would receive a written
warning. Accruing two No Call/No Show occurrences was considered job abandonment and would
result in termination.
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If agents do not report to work at the time they are scheduled, the company may fail to meet contractual performance measures, which in some cases results in the loss of revenue to the company. Specifically, in contracting with its clients, Convergys is bound by Direct Measures of Quality, known as “DMOQs,” which define client expectations. DMOQs include the rate at which customers abandon calls due to excessive wait times, and other factors that determine the level of service provided. In order to meet the DMOQs defined by its clients, Convergys tracks the performance of every project in half-hour increments. That information is available to its clients in real-time. Failure to meet contractual DMOQs could result in a revenue loss.
Direct supervisors of the agents, known as Team Leaders, track attendance daily. In addition, Stephen Brookins, Operations Manager of Demirelli’s assigned project, conducted audits of agent attendance and reviewed attendance reports daily. If an agent logged into TKS more than three minutes after his scheduled start time, the Team Leader entered “tardy” into the Metrix attendance system. Team Leaders did not always mark incurred tardies on agents’ attendance records.
D. Demirelli’s Attendance For the first six months of Demirelli’s employment, he arrived at work on time and got back and forth between breaks and meal periods timely and without any assistance or accommodations. In July 2001, Demirelli incurred four tardies and one absence. In August 2001, Demirelli received and signed a review from his supervisor at the time, Loretta Hill. In that review Hill wrote, “Yigit understands policies and procedures and attendance.” On November 1, 2001, Demirelli received a verbal warning for excessive tardiness. Demirelli had accrued ten tardies between June 2001 and October 2001. For approximately one month after receiving his verbal warning for tardies in November 2001, Demirelli had perfect attendance and no tardies. Demirelli asserted that he accomplished this by “trying to go a little faster.”
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In either December 2001 or January 2002, Demirelli’s supervisor at the time, Rick Lartch, went on medical leave and Demirelli was without a direct supervisor until March 2002. Demirelli knew that he was frequently tardy while he was without a supervisor. On March 20, 2002, Demirelli received a written warning from Marlon Mitchell, his new supervisor, for incurring one No-Call/No Show on March 15, 2002. On April 18, 2002, Demirelli received a written warning from Marlon Mitchell for accruing eighteen tardies in a twelve-month period. Demirelli knew at the time he received the written warning that he had already exceeded the number of accrued tardies permitted under Convergys’s attendance policy and that he was subject to termination for every tardy over fourteen. On the same date, Demirelli received a written warning for accruing eight absences. The written warning advised Demirelli that “Failure to observe the Attendance Policy of Convergys or any other policy or procedure may result in further disciplinary action up to and including termination.”
Mitchell prepared a note to Demirelli’s file regarding the tardies. The note stated: On April 18th at 6:05 p.m. I discussed with Yigit the reasons for his tardiness. Agent explained that he switched from 3:00 pm to 11pm shift to the 4:30 pm-1:00 am shift, to find available parking. I then asked Yigit to explain why he continued to be tardy after switching shift to his new hours, Yigit explained that he is having difficulty finding a seat on the floor when he arrives at 4:30 p.m. I then suggested to Yigit that he needs to arrive early for his shift to avoid any further tardy occurrences. I then explained to Yigit that it is necessary that he be placed on a written warning for his 19 tardy occurrences and that one more occurrence may result in termination. I then supplied Yigit a copy of the “Associates manual” attendance policy for him to review. (Ex. 34 to Demirelli’s Dep.). Towards the latter part of April 2002, LaShonDa Aldridge became Demirelli’s Team Leader. Before Aldridge took over as Demirelli’s Team Leader, she met with Mitchell. Mitchell told Aldridge that Demirelli was on a written warning for tardiness and that Demirelli’s schedule had been changed to a fixed start time of 4:30 p.m. to allow him to get to work on time.
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After April 18, 2002, Demirelli was tardy seventeen times returning to work from his meal break, however, he arrived to work at the start of his shift on time as scheduled. Demirelli was terminated on June 27, 2002. On his exit interview form, Demirelli stated:
I fully realize that I have been less than perfect with my time management here at Convergys. However, I must point out certain factors that contributed to my tardiness. First off hand, as I have stated to my superiors before, most of my tardies were caused due to lack of accessible/handicapped parking spaces. I have even changed my schedule from 3pm-11pm to 4:30pm-1:00 am so that I might find vacant spots as the 4 pm shift leaves. Correspondingly, after my first manager (Loretta Hill) left Convergys I was left unsupervised, without a manager for a period of two months. Thus, there was no one to give me a verbal warning so that I would have a chance to stop my tardies. Thus, because of the reasons I have listed above I feel I have been wrongly terminated. I would also like to state that I fully contributed all of my talents/skills to the clients of this company in order to resolve their problems. While I disagree with the decision of the HR dept I want to express I have enjoyed fully working here and interacting with my colleagues. I kindly request that you reconsider your decision. (Ex. 40 to Demirelli’s Dep.). Demirelli’s Employee Attendance Report produced by the Metrix attendance system from June 27, 2001 to June 27, 2002 shows that he was tardy twenty-one times and had one No Call/No Show during that period. Demirelli’s Counseling Record Form signed on November 1, 2001, shows that he was given a verbal warning for ten tardies. Demirelli’s Counseling Record Form signed on April 18, 2002 shows that he was given a written warning for eighteen tardies. Demirelli’s Counseling Record Form terminating him on June 27, 2002 states that he had twenty tardies. Demirelli’s Counseling Record Form signed on March 20, 2002 shows that he was given a written warning for one No Call/No Show.
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The electronic data regarding timekeeping and phone usage kept by Convergys shows that
Demirelli was tardy one hundred and two times during his employment.4 He was late coming to work
thirty-seven times and late returning from lunch sixty-five times.
Despite his tardiness, Demirelli received a satisfactory or better rating in the category of
attendance in every one of the twelve Performance Reviews that he was given. Demirelli’s former
supervisors Hill and Aldridge approved raises for Demirelli, rating him a “Quality Contributer.”
IV. Defendant’s Motion for Summary Judgment
A. Standard for ADA Cases
The ADA prohibits discrimination by an employer “against a qualified individual with a
disability because of the disability of such individual.” 42 U.S.C. § 12112(a); Snow v. Ridgeview
Med. Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997). First, the Court must determine the burden of
production and persuasion in this ADA case. The burden of proof depends on whether plaintiff
alleges a claim of discriminatory disparate treatment or a reasonable accommodation claim. Plaintiff
4The EEOC disputes this data as contained in defendant’s Exhibit 36. The EEOC contends that Exhibit 36 is inadmissible hearsay because (1) Convergys does not have any records reflecting Demirelli’s actual scheduled work times, (2) Exhibit 36 was prepared by Teresa Horstmann who did not have Demirelli’s work schedules when she prepared the exhibit, (3) Horstmann prepared Exhibit 36 at the request of Convegys’s counsel after Demirelli’s termination, and (4) despite stating that he had no reason to believe it was inaccurate, Demirelli had not seen Exhibit 36 prior to his deposition so could not know whether it was accurate or inaccurate.
When ruling on a summary judgment motion, the Court may consider only the portion of submitted materials which would be admissible or usable at trial. Walker v. Wayne County, Iowa, 850 F.2d 433, 434 (8th Cir. 1988), cert. denied sub nom Martin v. Walker, 488 U.S. 1008 (1989). Thus, without a showing of admissibility, a party may not rely on hearsay evidence for purposes of a motion for summary judgment. Id., 850 F.2d at 435. In this case, the Court does not have to consider Exhibit 36. In response to the EEOC’s hearsay objection, Convergys submitted the affidavit of its Senior Business Systems Analyst Tara Match who avers that Convergys’s raw electronic data is consistent with the information contained in Exhibit 36, i.e., Demirelli accrued 102 tardies during his employment there.
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asserts that Convergys has "failed and refused to provide reasonable accommodation for Demirelli's disability and terminated him because of his disability, brittle bone disease." (EEOC Compl. ¶ 8). Because this is a reasonable accommodation claim, the Court will apply a modified burden-shifting analysis. Fenney v. Dakota, Minnesota & Eastern Railroad Company, 327 F.3d 707, 712 (8th Cir. 2003).
In order to establish a prima facie case of discrimination based on a disability, a plaintiff must show that (1) he is disabled within the meaning of the ADA; (2) he was able to perform the essential functions of his job with or without reasonable accommodation; and (3) he suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc).
1. Disability within the meaning of the ADA and Adverse Employment Action The ADA defines the term “disability” as “(A) a physical or mental impairment that substantially limits one of more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2)(A)-(C); Taylor v. Nimock’s Oil Co., 214 F.3d 957, 960 (8th Cir. 2000). “According to the regulations that guide the interpretation of the ADA, an impairment is ‘substantially limiting’ if it renders an individual unable to perform a major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under which an individual can perform such an activity compared to the general population. 29 C.F.R. § 1630.2(j)(1)(i)-(ii). Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning, and working, 29 C.F.R.§1630.2(i), as well as sitting, standing, lifting, and reaching.” Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 679 (8th Cir. 2001) (citing Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 948 (8th Cir. 1999)).
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For purposes of summary judgment, the parties do not dispute that Demirelli is disabled within the meaning of the ADA or that Demirelli suffered an adverse employment action, i.e., termination.
2. Qualified Individual To conclude that a person is a qualified individual within the meaning of the ADA, the court must consider whether the person has “the requisite skill, experience, education and other job-related requirements of the employment position that such individual holds or desires.” Weber v. Strippit, Inc., 186 F.3d 907, 916 (8th Cir. 1999). “[A] court cannot evaluate a plaintiff’s qualifications in a vacuum but must consider the specific essential functions of a particular job.” Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 575 (8th Cir. 2000). “Although an ADA plaintiff retains the ultimate burden of proving that she is a qualified individual, an employer who disputes the plaintiff’s claim that she can perform the essential functions of a job must put forth evidence establishing those functions.” Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995). An essential function may be established by evidence that includes:
(1) the employer’s judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the current work experience of incumbents in similar jobs. Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th Cir. 1998) (internal quotation marks omitted). A plaintiff need only make a facial showing that a reasonable accommodation that would enable her to perform her essential job functions is possible. Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 950 (8th Cir. 1999). The burden then shifts to the employer to show that it is unable to accommodate the plaintiff. Id. Heaser v. Toro Co., 247 F.3d 826, 831 (8th Cir. 2001).
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In this case, Convergys asserts that Demirelli is not a qualified individual because he cannot perform an essential function of his job, being punctual, with or without a reasonable accommodation. The EEOC asserts that punctuality is not an essential function of the job, and even if it was an essential function, Convergys failed to provide Demirelli with a requested accommodation of having a longer lunch period.
Initially, the Court must determine if punctuality was an essential function of Demirelli’s job as an agent. Convergys has put forth evidence establishing that punctuality was an essential function. Benson, 62 F.3d at 1113. First, Convergys had an attendance policy, which Demirelli received, that stated it expects its agents “to show up for work on time every day.” Second, Convegys had a progressive discipline system regarding absences and tardies. The attendance policy and discipline system show that Convergys considered punctuality as essential. Moritz, 147 F.3d at 787. Third, Convergys schedules its employees based on call forecasting data to ensure that someone is available to answer the projected call volume. Therefore, there could be financial consequences for Convergys if its Associates had numerous absences and tardies. Moritz, 147 F.3d at 787. Fourth, Demirelli was disciplined on several occasions for his tardiness.
The EEOC disputes that punctuality was an essential function of Demirelli’s job because Convergys was lax in enforcing its policy and supervisors did not always mark employees tardy. The EEOC contends that Demirelli still received satisfactory or better ratings in the area of attendance and Convergys took into account potential absences or tardies when it scheduled its staff for work. These arguments are not persuasive.
The Eighth Circuit has held that “regular and reliable attendance is an essential function of most jobs.” Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999) (citations and quotations omitted). It is of no consequence that Convergys accounted for absences and tardies
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when scheduling workers. See Buckles, 176 F.3d at 1101 (court rejects plaintiff’s assertion that attendance was an essential function because of the number of employees and the company accounted for absences). It is undisputed that Demirelli had a customer service job, which required answering a certain number of calls in a certain period of time. Further, it is undisputed that Convergys’s contract obligated it to appropriately staff operations to answer those calls in a timely manner. If punctuality was not an important job function, Convergys would not need an attendance policy and it would not sign contracts stating that it could handle a certain call volume in a certain period of time. Accordingly, the Court finds that punctuality was an essential function of Demirelli’s position at Convergys. See also Earl v. Mervyns, 207 F.3d 1361, 1366 (11th Cir. 2000) (punctuality was essential function of plaintiff’s job where plaintiff had to prepare store for opening or take over shift); Nesser v. Trans World Airlines, 160 F.3d 442, 445 (8th Cir. 1998) (attendance is an essential job function).
Next, the Court must determine whether plaintiff “has made a facial showing that a reasonable accommodation would enable him to perform his essential job functions.” Dropinski v. Douglas County, Neb., 298 F.3d 704, 709 (8th Cir. 2002) (quoting Heaser, 247 F.3d at 830). “A reasonable accommodation is one which enables a[n] individual with a disability to perform the essential functions of the position.” Hatchett v. Philander Smith College, 251 F.3d 670, 675 (8th Cir. 2001) (citing 29 C.F.R. § 1630.2(o)(1)(i)). Employees seeking a reasonable accommodation must request one from the employer. Id. at 675. Once the employee makes a facial showing that the accommodation is reasonable, “the burden then shifts to the employer to show that it is unable to accommodate the plaintiff.” Heaser, 247 F.3d at 831.
In this case, the EEOC asserts that Demirelli requested reasonable accommodations and did not receive them. Further, the EEOC contends that Demirelli would have been able to arrive at work
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on time and return from lunch on time if Convergys had granted his requests for accommodation.
Convergys, in contrast, asserts that Demirelli could not perform his job with or without reasonable
accommodations.
The parties agree that Demirelli requested the following accommodations: a parking space,
a personal headset, and to have an assigned seat. In Demirelli’s deposition he testified:
[t]he accommodation I was seeking was a parking space, a headset and a place to sit, which is what I have always told every supervisor. I was not seeking for special treatment or any other type of accommodation. I simply need– required the accommodation of parking, a place to sit and a pair of headphones to be able to do my job on time.
(Demirelli Dep. 94:16-23). Teresa Horstmann, Senior Director of Human Resources, reviewed
Demirelli’s request for a reserved parking spot and denied it. Horstmann testified as to the reasons
for the denial as follows:
One was it was a public parking lot, meaning we did not have control of that lot. There were several businesses in the area that all shared the parking lot. We had Sanford Brown, there was a government building, there is an SSM Health Center that does a lot of rehabilitative services there, and we did not feel really that that was an option. We knew that, you know, we had disabled employees and we didn’t know what the other companies had, but we didn’t feel like we could take a specific spot and assign it to others who may need the spot when that spot is not being used.
(Horstmann Dep. 93:23-94:11). Former employee Janet Weaver, however, who was disabled in
walking, received a reserved parking spot in the back of the building from Convergys from March
2000 through July 2001. (Weaver Dep. 23:8-25).
Horstmann later testified that, in lieu of the reserved parking spot, Convergys approved a
schedule change for Demirelli to work from 4:30 p.m. to 1:00 a.m. Horstmann testified the reason
for the schedule change was that, “The parking lot in the evening is much less crowded than it is
during the daytime. . . . He was already available evenings.” (Horstmann Dep. 97:23-98:2). Both
parties agree that no one knows the exact date when Demirelli began working at 4:30 p.m. It is
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undisputed that the schedule change occurred before Demirelli’s written warning from Mitchell on April 18, 2002, where the time change is noted.
After Demirelli’s schedule change, he apparently continued to report late to work as noted in the written warning from Mitchell. Demirelli still had problems finding parking after his schedule change. After receiving the written warning from Mitchell, however, Demirelli was never late for his shift again from that date until his termination. The Court finds that the issue regarding whether a parking space would be a reasonable accommodation is irrelevant regarding Demirelli’s termination because he was terminated for tardies received returning from lunch after April 18, 2002. Demirelli was not late for work after receiving his written warning from Mitchell and was not terminated for being late to work, so the issue becomes moot.
Next, Convergys did not grant Demirelli’s request to take a headset home. Convergys asserts that employees were not allowed to take headsets home because they might not return them. Again, the request for a headset concerned Demirelli’s problems with arriving to work on time and logging in to the computer system. At different times during his employment Demirelli had assigned seating, open seating, and seating in the training area. During the last few months of his employment, including the time after April 18, 2002, Demirelli was allowed to sit in the training area. (Aldridge Dep. 160:2-9). At the time of his dismissal, Demirelli had been sitting in the training area for several months.
The Court finds that allowing plaintiff to sit in the training area was a reasonable accommodation and Demirelli admits that the time change and being allowed to sit in the training area allowed him to log in to the system on time. Also, Demirelli had a headset at his training area, therefore, the lack of a headset was not at issue at the time of Demirelli’s termination and was not a factor in the termination.
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Finally, the parties state there is a dispute about whether plaintiff requested more time for
lunch so that he would not be tardy returning from lunch. Plaintiff’s deposition testimony concerning
this issue was as follows:
Q: Did you ever ask anybody for you to be able to have a longer lunch period than anybody else?
A: No ma’am.
Q: You never asked them to change their policy on tardies for you?
A: My words were, “Is there any way that they can work with me on getting back from lunch?” And whenever I said that, I would bring up the suggestion of maybe a pay cut or taking it out of my pay, because that was – I wanted to keep my job. That was the only thing I could think of.
(Demirelli Dep. 196:7-18).
In another portion of his deposition, Demirelli testified:
Q: Okay. And were you requesting that they ignore your tardies or that you get more time every single time you go to lunch?
A: I was requesting that I would do my best to get back from lunch on time, that I would not slack off just because I’m getting more time. I was simply requesting, if I do have so many tardies, that if they could maybe be forgiven because of my situation. But I was really not requesting, okay, always give me extra time for lunch, that they change the rule for me. I was simply saying, if I am late for lunch, this is the reason why, and if you could give me perhaps more of a grace period, more grace time to come back from lunch if I’m tardy.
(Demirelli Dep. 157: 10-24).
There is evidence in the record that Convergys allowed other disabled employees with medical
problems to have a longer lunch break or break. (Brookins Dep. 212:23-214:4; Asthon Dep.
108:22-110:5).
The Court finds that there is genuine dispute of material fact regarding whether Demirelli
requested a longer lunch period and whether a longer lunch period was a reasonable accommodation
which could have enabled Demirelli to avoid excessive tardies in returning from lunch. Therefore,
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the Court will deny defendant’s motion for summary judgment regarding Demirelli’s claim that it failed to accommodate his request for a longer lunch period. V. Plaintiff’s Motion for Summary Judgment
The EEOC requests summary judgment on Convergys’s after-acquired evidence affirmative defense. First, the EEOC states that Convergys cannot establish that the evidence it contends was after-acquired was first known to it after it terminated Demirelli. Second, the EEOC contends that Convergys cannot prove with admissible evidence that Demirelli committed the attendance infractions that Convergys claims as after-acquired. Third, the EEOC asserts that Convergys has unclean hands and should be barred from asserting that Demirelli’s remedy should be limited because he did not have legal authorization to work for eight months during his employment. Finally, the EEOC states that Convergys cannot establish that it would have terminated Demirelli for the offenses it claims as afteracquired evidence.
The Court will deny plaintiff’s motion for partial summary judgment without prejudice. Plaintiff can file motions in limine, if necessary, regarding the evidentiary issues raised in its motion for partial summary judgment. VI. Conclusion
In conclusion, the Court will grant in part and deny in part defendant’s motion for summary judgment. Defendant’s motion is denied with respect to plaintiff’s ADA claim which asserts that defendant failed to reasonably accommodate his request for a longer lunch period. Defendant’s motion is granted as to the other claims in plaintiff’s complaint that defendant failed to reasonably accommodate his request for a parking space, to take a headset home or have a personal headset, and to have an assigned seat. Plaintiff’s motion for partial summary judgment is denied without prejudice.
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Accordingly, IT IS HEREBY ORDERED that defendant’s motion for summary judgment is GRANTED in part and DENIED in part as set forth in this memorandum and order. [Doc. 48] IT IS FURTHER ORDERED that plaintiff’s motion for partial summary judgment is DENIED without prejudice. [Doc. 51] An appropriate partial judgment will accompany this memorandum and order.

Dated this 19th day of January, 2006.

CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

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 Case 4:04-cv-00846-CAS Document 125 Filed 04/06/2006 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

AHMET YIGIT DEMIRELLI,

)

)

Plaintiff-Intervenor,

)

)

v.

)

)

CONVERGYS CUSTOMER ,

)

MANAGEMENT GROUP, INC.

)

)

Defendant.

)

No. 4:04-CV-846 CAS

MEMORANDUM AND ORDER This matter is before the Court on plaintiffs’ motion to alter judgment. Defendant filed a memorandum in opposition. For the following reasons, the Court will deny plaintiffs’ motion. I. Background Plaintiff Equal Employment Opportunity Commission (“EEOC”) and plaintiff-intervenor Ahmet Yigit Demirelli seek relief against defendant Convergys Customer Management Group, Inc. (“Convergys”) for alleged violations of Title I of the American with Disabilities Act of 1991, 42 U.S.C. § 12112(a) ("ADA"), involving the failure to provide reasonable accommodation for Demirelli's disability and terminating Demirelli because of his disability. The parties filed crossmotions for summary judgment. The Court granted in part and denied in part defendant’s motion for summary judgment and denied plaintiffs’ motion for summary judgment without prejudice. Partial

Case 4:04-cv-00846-CAS Document 125 Filed 04/06/2006 Page 2 of 4
judgment was entered in favor of defendant. This action will proceed to trial on plaintiffs’ claim that Convergys failed to provide Demirelli a reasonable accommodation of a longer lunch period.
Plaintiffs filed a motion to alter judgment pursuant to Federal Rule of Civil Procedure 59(e) seeking to correct a factual finding made by the Court. Convergys opposes the motion stating that the Court did not commit a manifest error of fact. II. Standard
This Court has broad discretion in deciding whether to grant a motion under Rule 59(e). Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998). Rule 59(e) was adopted to clarify that “the district court possesses the power to rectify its own mistakes in the period immediately following the entry of judgment.” White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 450 (1982) (internal quotations omitted). “Rule 59(e) motions serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence.” Innovative, 141 F.3d at 1286 (internal punctuation and citations omitted). Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment. United States v. Metropolitan St. Louis Sewer Dist., No. 05-1598, __ F.3d __ (8th Cir. March 6, 2006). III. Discussion
Plaintiffs assert that the Court should alter the Memorandum and Order of January 19, 2006. Plaintiffs contend that the Court made a manifest error of fact in its finding, which stated, “The electronic data regarding timekeeping and phone usage kept by Convergys shows that Demirelli was tardy one hundred and two times during his employment. He was late coming to work thirty-seven times and late returning from lunch sixty-five times.” (Order of January 19, 2006, p. 12). Plaintiffs
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Case 4:04-cv-00846-CAS Document 125 Filed 04/06/2006 Page 3 of 4
state that this factual finding is inconsistent with the affidavit relied upon by the Court. In that
affidavit, Convergys’s Senior Business Systems Analyst Tara Match stated:
6. I cross-checked all tardies identified as a “lunch” tardy on Exhibit 36 with the new computer data available to me in Convergys’ central repository database and archived timekeeping and phone usage data, which is described above. The timekeeping records and phone usage reports confirm that on each of the days identified as a lunch tardy Mr. Demirelli’s period of time during a meal break exceeded 33 minutes.
(Match Aff. ¶ 6). Plaintiffs want the Court to amend the memorandum and order to state that
Match’s affidavit only supports a finding that Demirelli was late returning from lunch sixty-five times,
and omit any reference to total tardies.
Defendant responds that the Court’s finding is correct and consistent with the facts on the
record and the Court did not commit a manifest error. Further, defendant responds that plaintiffs
have provided no support that a modification of the order is required to affect the substantial rights
of the parties.
The Court finds plaintiffs’ motion should be denied. The factual finding that Demirelli was
tardy 102 times is supported by other evidence in the record, including Demirelli’s deposition where
he acknowledges the accuracy of Exhibit 36, which documents the accrual of 102 tardies. Federal
Rule of Civil Procedure 61 provides:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The Court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
The Court finds that the substantial rights of the parties are not affected by the error, if any, and that
refusal to grant the motion to alter the finding is not inconsistent with substantial justice. Therefore,
plaintiffs’ motion will be denied.
3

Case 4:04-cv-00846-CAS Document 125 Filed 04/06/2006 Page 4 of 4 Accordingly, IT IS HEREBY ORDERED that plaintiffs’ motion to amend judgment is DENIED. [Doc.
69]. CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
Dated this 6th day of April, 2006.
4

 
 Case 4:04-cv-00846-CAS Document 135 Filed 04/12/2006 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plainti ft~

)

)

and

)

)

AHMET DEMERELLI,

)

)

Pia inti ft~Intervener

)

)

v.

)

)

CONVERGYSCUSTOMER

)

MANAGEMENT GROUP [NC.,

)

)

Defendant.

)

No. 4:04CV00846CAS

Defendant's Motion for Judgment as a Matter of Law as to Plaintiff's Claim for Compensatory Damages

COMES NOW, Defendant Convergys Customer Management Group Inc. , pursuant to

Rule 50(a) of the Federal Rules of Civil Procedures, and seeks for this Court to render judgment

as a mailer of law as to Plaintiffs claim for compensatory damages.

Rule 50(a) of the Federal Rules of Civil Procedure expressly permits the Court to dismiss

all or part of Plaintiffs claims on any particular issue after Plaintiff has been fully heard.

Specifically, Rule 50(a)(I) reads:

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

3329050

Case 4:04-cv-00846-CAS Document 135 Filed 04/12/2006 Page 2 of 4
To recover compensatory damages based upon Convergys's alleged failure to accommodate his disability, Plaintiffs were required to present evidence that "the employer did not make a goodfaith effort to assist the employee in seeking accommodations" and that "the employee could have been reasonably accommodated but for the employer's lack ofgoodfaith." McClean v. Case Corp., Inc., 314 F. Supp.2d 911, 918-19 (D.N.D. 2004) (emphasis added) (citing Beck v. University of Wisconsin Bd. ofRegents, 75 F.3d 1130, 1137 (7th Cir. 1996».
Plaintiffs have failed to meet this burden in their case in chief, and therefore a directed verdict as to Plaintiffs' claim for compensatory damages must fail. The Court has already held, and Plaintiffs have failed to present any evidence to the contrary, that Convergys made a "good faith effort" to accommodate Demirelli's disability by modifying his schedule and allowing him to sit in the training area. (See Order dated Jan. 19,2006, at 17-18).
Plaintiffs evidence fail to make the requisite showing that Defendants failed to act in good faith in order to make the relief of compensatory damages available. Where (as in this case) no evidence exists that an employer failed to make a good faith effort to accommodate the employee's disability, courts in the Eighth Circuit do not hesitate to resolve the issue of "good faith" as a matter of law. For example, in Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1217 (8th Cir. 1999)-a case involving facts precisely analogous to those alleged here-the Eighth Circuit held that an employee's evidence of lack of good faith was legally insufficient. In Mole, the employer made several efforts to accommodate the plaintift~ including "help[ingJ her seek medical treatment, grant[ingJ her leaves of absences[,J ... allow[ingJ her time off and breaks when she returned to work, and distribut[ingJ some of her work to other employees." Id at 1217. The employee-like Plaintiffs here-nevertheless argued that the employer "knew or

3329050

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Case 4:04-cv-00846-CAS Document 135 Filed 04/12/2006 Page 3 of 4

should have known how to afford [the employee] further accommodations." fd. In rejecting the
employee's argument, the Eighth Circuit explained:
As the district court recognized, the problem with this contention is that prior to receiving a notice of termination Mole never advised [the employer] she needed additional accommodation, much less what accommodation specific to her position and workplace was needed. In general, it is the responsibility ofthe individual with the disability to inform the employer that an accommodation is needed. ... Only Mole could accurately identify the need for accommodations specific to her job and workplace. Mole cannot expect the employer to read her mind and know she secretly wanled a particular accommodation and then sue the employer for not providing it.
1d. at 1217-18 (emphasis added ; citations omitted). See also, e.g. , Kratzer v. Rockwell Collins,
Inc., 398 F.3d 1040, 1045 (8th Cir. 2005) ("A mere assertion that an accommodation [is] needed
is insuffi cient ; the employee must inform the employer of the accommodation needed.")
(emphasis added); McClean, 314 F. Supp.2d 911,918-19 (employee's post-termination affidavits
suggesting additional accommodates "were never communicated to [the employer] at the time
the interactive process was occurring, so Plaintiff cannot demonstrate bad faith on [the
employer's] part by now informing the company of accommodations.").
The evidence presented in Plaintiffs' case in chief renders Mole dispositive. Because
Convergys indi sputab ly made good faith efforts to provide Demirelli with the accommodations
he requested, and because Demirelli never requested the accommodation Pl aintiffs now argue he
should have received, Plaintiffs cannot, as a matter of law, show that Convergys failed in bad
fait h to accommodate his disability. Accordingl y, Plaintiffs cannot recover compensatory or
punitive damages, and the Court should exclude evidence and argument concerning such
dam ages.
WHEREFORE, Defendant respectfull y requests that the Co urt grant Convergys judgment
as a matter of law with respect to Plaintiffs' claim for compensatory damages.

332905 0

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Case 4:04-cv-00846-CAS Document 135 Filed 04/12/2006 Page 4 of 4

Respectfully submitted,

THOMPSON COBURN LLP
r

C( - I

(J

~ L ~'l\., /;. ,'I C-''I c ' "

,-, Mary M, B acorsi, #2669 Laura M, 10 an, # 101022 One U,S , Bank Plaza St. Louis, Missouri 63101 314-552-6000 FAX 314-552-7000

Attorneys for Defendant, Convergys Customer Management Group Inc,

3329050

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 Case 4:04-cv-00846-CAS Document 137 Filed 04/12/2006 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

AHMET DEMERELLI,

)

)

Plaintiff-Intervener

)

)

v.

)

)

CONVERGYSCUSTOMER

)

MANAGEMENT GROUP INC.,

)

)

Defendant.

)

No. 4:04CV00846CAS

MOTION FOR DIRECTED VERDICT COMES NO W, Defendant Convergys Custom er Management Group, Inc. ("Convergys") pursuant to Rule 50 of the Federal Rules of Civil Procedure, and in anticipation of Plainti ffs resting their case and to expedite the presentation of evidence, moves the Court, as of the close of the evidence offe red by Plaintiffs, to direct a verdict in favor of Convergys and against Plainti ffs for the reasons that the evidence presented by Plaintiffs fails to establish that Plaintiffs are entitled to rei ief as a matter of law. In particular, Convergys states the following reasons require judgment in favor of Convergys: I. Plaintiff Yigit Demirelli is not qualified within the meaning of the Americans with Disabilities Act because he is unable to perform the essential functions of his job with reasonable accommodation. The Court has already held that punctuality is an essenti al functi on

116687 0

Case 4:04-cv-00846-CAS Document 137 Filed 04/12/2006 Page 2 of 5

of the job. (Memorandum and Order). Plaintiffs failed to demonstrate that Demirelli could be punctual at Convergys, with or without reasonable accommodation. Plaintiffs admit during DemireIli' s direct examination that he could not be punctual. In fact, the only accommodation Demirelli testified that would have allowed him to work is that he not be punctual.
The Eighth Circuit has unequivocally held time and again, that as a matter of law, an employer is not required to eliminate an essential job function as an accommodation for a disabled employee. Maziarka v.Mills Fleet Farm, Inc., 245 F.3d at 681-82. Like Demirelli, Maziarka claimed that he should have been accommodated for by receiving time off without pay or to make up the missed work time later. Noting that "dependable attendance is often an essential part of a job", the Court found that the plaintiffs job required that he be capable of regular and predictable attendance at a specified location in order to perform the tasks of a receiving clerk." Id. at 681. Affirming summary judgment, the Court held that make-up time was not a reasonable accommodation:
His proposed accommodation does not address the crucial problem - the unpredictability of Maziarka's absences - which left Fleet Farm unable to rely on its schedule in order to efficiently receive and process merchandise. Hi s proposal instead presumes that regular, predictable attendance is not an essential function of his job. "It is well settled that an employer is under no obligation to reallocate the essential functions of a position that a qualified individual must perform. ld (quoting Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 788 (8th Cir. 1998)). Likewi se, in Buckles v. First Data Res., Inc., 176 F.3d 1098 (8th Cir. 1999), the Eighth Circuit reversed the District Court's denial of summary judgment where the employee was chronically absent from his job. Although the Plaintiff argued that he was qualified to perform the duties with the accommodation ofleaving work at any time an air-borne irritant aggravated his condition, the Court disagreed. The Court held that "[u]nfettered ability to leave work at any

1166870

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Case 4:04-cv-00846-CAS Document 137 Filed 04/12/2006 Page 3 of 5
time is certainly not a reasonable accommodation" and an employer is not required by the ADA to provide an unlimited absentee policy. Id. at 1101. See also Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000) (affirming summary judgment for employer and holding that ability to clock in at whatever time plaintiff arrived without reprimand and permit her to make up missed time at end of a shift is not a reasonable accommodation. "A request to arrive at work at any time, without reprimand, would in essence require Appellee to change the essential functions of Appellant's job, and thus is not a request for a reasonable accommodation.").
2. Plaintiffs have failed to present evidence that Convergys failed to accommodate Demirelli with an accommodation that would have permitted him to be punctual.
Plaintiffs have the burden to prove that Demirelli could have been punctual but for the reasonable accommodation he allegedly did not receive. It is not disputed, and the Court has found, that Demirelli was dismissed because, ultimately, he was excessively late returning from his meal break, even after receiving certain accommodations that effectively allowed him to report to work on time.
However, Plaintiffs have failed to present any evidence to support a judgment in their favor, that Demirelli failed to receive an accommodation that would have allowed him to be punctual. As such, judgment should be granted in favor of Convergys.
3. Plaintiffs' proposed accommodation is not reasonable, as a matter of law, because it requests only that Demirelli be forgiven for his tardies or that Convergys allow him to work without the essential function of punctuality.
4. Plaintiffs' failed to show that Convergys failed to accommodate Demirelli because the alleged accommodation was never requested by Demirelli and such accommodation was not so

1166870

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Case 4:04-cv-00846-CAS Document 137 Filed 04/12/2006 Page 4 of 5
obvious as to require Convergys to provide it without Demirelli' s request. Mole, supra (precluding relief where employee failed to request accommodation).
5. Plaintiffs' are not entitled to compensatory damages, or punitive damages, because Convergys has established that it acted in good faith in an attempt to accommodate Demirelli. Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1217 (8th Cir. 1999); See also, e.g., Kralzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005) ("A mere assertion that an accommodation [is] needed is insufficient; the employee must inform the employer of Ihe accommodalion needed." ) (emphasis added); McClean , 314 F. Supp.2d 911 , 918-19 (employee's post-termination affidavits suggesting additional accommodates "were never communicated to [the employer] at the time the interactive process was occurring, so Plaintiff cannot demonstrate bad faith on [the employer's] part by now informing the company of accommodations.").
6. Plaintiffs are not entitled to an award of backpay because Plaintiff failed to mitigate his damages.
7. Plaintiffs are not entitled to an award of emotional distress damages because Plaintiffs' have failed to establish that Convergys was the cause of Demirelli ' s emotional distress.

1 1668 70

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Case 4:04-cv-00846-CAS Document 137 Filed 04/12/2006 Page 5 of 5

Respectfully submitted,

THOMPSON COBURN LLP

(

(/

au ",/

M'-

~C --" /I. r~ ( -

' (-Mary M. ~onacorsi, #2669

Laura M. Jocdan, # 101022

One U.S . Bank Plaza

St. Louis, Missouri 63101

314-552-6000

FAX 314-552-7000

Attorneys for Defendant, Convergys Customer Management Group Inc.

I 106870

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 Case 4:04-cv-00846-CAS Document 141 Filed 04/18/2006 Page 1 of 2

Ul1ited States District Court
EASTERN DISTRICT OF MISSOURI

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
AHMET YIGIT DEMlRELLl , Plaintiff-Intervenor
v.

JUDGMENT IN A CIVIL CASE

CASE NUMBER:

4:04CV846CAS

CONVERGYSCUSTOMER MANAGEMENT GROUP, INC.
Defendant.

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

Directed Verdict. This action came before the Court for a trial by jury, the Court having sustained defendant's motion for judgment as a matter of law at the close of plaintiffs' case;

o

Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a

decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that Judgment is entered in favor of plaintiffs Equal Employment Opportunity Commission and Ahmet Yigit Demirelli and against defendant Convergys Customer Management Group, Inc. on the claim of disability discrimination as submitted in instruction #12.
IT IS HEREBY ORDERED AND ADJUDGED that Judgment is entered in favor of plaintiffs Equal Employment Opportunity Commission and Ahmet Yigit Demirelli and against defendant Convergys Customer Management Group, Inc. on the claim that Convergys Customer Management Group, Inc. failed to make a good faith effort and to consult with plaintiff Ahmet Yigit Demirelli to identify and make a reasonable accommodation as submitted in instruction #14.
IT IS HEREBY ORDERED AND ADJUDGED that Judgment is entered in the amount of$14,265.22 for lost

Case 4:04-cv-00846-CAS Document 141 Filed 04/18/2006 Page 2 of 2

wages and benefits through the date of verdict and $100,000.00 for other damages up to April 4, 2003, excluding lost wages and benefits, for a total judgment of One Hundred Fourteen Thousand, Two Hundred Sixty-Five Dollars and Twenty-Two Cents ($114,265.22).
Costs are assessed against defendant.

April 18, 2006 DATE

United States District Judge

 
 Case 4:04-cv-00846-CAS Document 170 Filed 07/07/2006 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

AHMET YIGIT DEMIRELLI,

)

)

Plaintiff-Intervenor,

)

)

v.

)

)

CONVERGYS CUSTOMER

)

MANAGEMENT GROUP, INC.,

)

)

Defendant.

)

No. 4:04-CV-846 CAS

AMENDED JUDGMENT In accordance with the Memorandum and Order of this date and the Partial Judgment of January 19, 2006 and incorporated herein, This action came before the Court for a trial by jury. On April 14, 2006, the jury rendered a verdict finding that defendant Convergys Customer Management Group, Inc. discriminated against plaintiff-intervenor Ahmet Yigit Demirelli and awarding Ahmet Yigit Demirelli lost wages in the amount of Fourteen Thousand Two Hundred Sixty-Five Dollars and Twenty-Two Cents ($14,265.22) and compensatory damages in the amount of One Hundred Thousand Dollars ($100,000.00). On this date, the Court awarded plaintiff injunctive relief and prejudgment interest in the amount of Two Thousand Six Hundred Thirty-Four Dollars and Eighty-Eight Cents ($2,634.88). The Court also awarded plaintiff Equal Employment Opportunity Commission costs in the amount of Seven Thousand Six Hundred Twenty-Seven Dollars and Fifty-Seven Cents

Case 4:04-cv-00846-CAS Document 170 Filed 07/07/2006 Page 2 of 3
($7,627.57) and plaintiff-Intervenor Ahmet Yigit Demirelli costs in the amount of One Hundred Thirteen Dollars ($113.00). Plaintiff-Intervenor is awarded attorney’s fees in the amount of ThirtyFour Thousand Four Hundred Dollars ($34,400.00).
Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that judgment is entered in favor of plaintiffs Equal Employment Opportunity Commission and Ahmet Yigit Demirelli and against defendant Convergys Customer Management Group, Inc. on the claim of disability discrimination as submitted in instruction #12. IT IS FURTHER ORDERED, ADJUDGED, and DECREED that judgment is entered in favor of plaintiffs Equal Employment Opportunity Commission and Ahmet Yigit Demirelli and against defendant Convergys Customer Management Group, Inc. on the claim that Convergys Customer Management Group, Inc. failed to make a good faith effort to consult with plaintiff Ahmet Yigit Demirelli to identify and make reasonable accommodations as submitted in instruction #14. IT IS FURTHER ORDERED, ADJUDGED, and DECREED that judgment is entered in the amount of Fourteen Thousand Two Hundred Sixty-Five Dollars and Twenty-Two Cents ($14,265.22) for lost wages and benefits through the date of the verdict, One Hundred Thousand Dollars ($100,000.00) for other damages up to April 4, 2003, excluding lost wages and benefits, total costs in the amount of Seven Thousand Seven Hundred Forty Dollars and Fifty-Seven Cents ($7,740.57), prejudgment interest in the amount of Two Thousand Six Hundred Thirty-Four Dollars and Eighty-Eight Cents (2,634.88), and attorney’s fees in the amount of Thirty-Four Thousand Four Hundred Dollars ($34,400.00) for a total judgment of One Hundred Fifty-Nine Thousand Forty Dollars and Sixty-Seven Cents ($159,040.67) against defendant Convergys Customer Management Group, Inc.
2

Case 4:04-cv-00846-CAS Document 170 Filed 07/07/2006 Page 3 of 3
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that defendant Convergys Customer Management Group, Inc. shall provide plaintiff-intervenor Ahmet Yigit Demirelli with a neutral reference letter for potential employers. The neutral reference letter shall contain the title of the last position plaintiff-intervenor held at Convergys and the dates he was employed there. The neutral reference letter shall be signed by a management official at defendant’s Hazelwood facility. The contents of the neutral reference letter shall be the only communication given in response to any inquires defendant receives regarding plaintiff-intervenor.

Dated this 7th day of July, 2006.

CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

3

 
 Case 4:04-cv-00846-CAS Document 175 Filed 07/13/2006 Page 1 of 8
RECEIVED

JUL 1 3 Z006
u. S. DISTRICT COURT
EASTERN DISTRICT OF Me ST. LOUIS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

AHMET DEMIRELLI,

)

)

Plaintiff-Intervener

)

)

v.

)

)

CONVERGYSCUSTOMER

)

MANAGEMENT GROUP INC. ,

)

)

Defendant.

)

No. 4:04CV00846CAS

NOTICE OF APPEAL TO UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Defendant Convergys Customer Management Group Inc. appeals to the United States

Court of Appeals for the Eighth Circuit from the fmal judgment entered on July 7, 2006 and from

any and all interlocutory orders entered in the above styled case, including, but not limited to: the

order denying in part of Defendant's Motion for Summary Judgement entered on January 19,

2006; the order denying Defendant's Motion for Iudgment as a Matter of Law entered on April

12,2006; the order denying Defendant's Motion for Judgment as a Matter of Law at the Close of

All Evidence entered on April 13,2006; the Jury Instructions filed on April 14,2006; the

Judgment in favor ofthe EEOC on April 18, 2006; the Order denying Defendant's Motion for

Judgment as a Matter of Law, or in the Alternative Motion for a New Trial or Remittitur entered

3391902

Case 4:04-cv-00846-CAS Document 175 Filed 07/13/2006 Page 2 of 8

'" I

'1"_

Case 4:04-cv-00846-CAS Document 175 Filed 07/13/2006 Page 3 of 8
on July 7, 2006; and the Order granting in part the EEOC's Motion for Permanent Injunction entered on July 7, 2006.
Respectfully submitted, THOMPSON COBURN LLP
B rsi, #2669
auraM. rd ,#101022 One U.S. Bank Plaza St. Louis, Missouri 6310 1 314-552-6000 FAX 314-552-7000 Attorneys for Defendant, Convergys Customer Management Group Inc.

3391902

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Case 4:04-cv-00846-CAS Document 175 Filed 07/13/2006 Page 4 of 8
i
i
I

Case 4:04-cv-00846-CAS Document 175 Filed 07/13/2006 Page 5 of 8
CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Notice of Appeal and Appellant's Form A were served via US Mail upon Barbara Seeley, Equal Employment Opportunity Commission 1222 Spruce Street, Room 8.100, St. Louis, MO 63103 and to Michael Fagras,
Attorney for Ahrnet Demerelli, 4700 Mexico Ro d, St. Peters, MO 63304 this La.. day of July,
2006.

3391902

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Case 4:04-cv-00846-CAS Document 175 Filed 07/13/2006 Page 6 of 8
I
, I

Case 4:04-cv-00846-CAS Document 175 Filed 07/13/2006 Page 7 of 8

u.s. COURT OF APPEALS - ElGHTII CIRCUIT
APPELLANT'S FORM A
Appeal Infonnation Fonn To be filed with the Notice of Appeal

Appeal Docket No.

STYLE OF CASE:
EEOC and Ahmet Yigit Demerelli
Appellant/Appellee, .s.

COUNSEL: NAME, ADDRESS, AND TELEPHONE NUMBER
Barbara A. Seely and Robert G. Johnson EEOC; 1222 Spruce Street, Room 8.100 St. Louis, MO 63103 (314) 539-7910
Michael J. Fagras 4700 Mexico Road St. Peters, MO 63376 (636) 498-400

Convergys Customer Management Group, Inc.
Appellant/Appellee

COUNSEL: NAME, ADDRESS. AND TELEPHONE NUMBER
Mary M. Bonacorsi & Laura M. Jordan Thompson Coburn LLP One US Bank Plaza St. Louis, MO 63101 (314) 552-6000

UST ISSUES ON APPEAL(For administrative purpOses}. You may indicate that this also serves as your statement

of issues under FRAP IO(bX3). I

IYes,

! , INo,

Whether the district court erred in: denying summary judgment on failure to accommodate claim; submitting jury instructions that were contrary to law and refusing to submit certain instructions; denying Convergys' motion for judgment as a matter of law (and renewed motion); denying Convergys' motion for judgment NOV; denying Convergys' motion for a new trial and remittitur; making certain evidentiary rulings; submitting the issues of compensatory and punitive damages.

FOR LEAD CO!!NSEL ONLY

IcrJhave <C:::)uIve not) discussed settlement possibilities on appeal with my client.
Tbis appeal~s c:::::J is not} amenable to settlement.

~([Jl Submitted by: .

5.1'

S.gna1ure of_ _

Date

INSTRUCTIONS: Filing of appellant" Fonn A is required to be submitted to the Clerk ofthe Dismc! Court with the Notice of Appeal (8 Cir, Rule 3B), Ifinadvertenly omitred, appellant may file Fonn A directly with the Clerk of the Court of Appeals befure appeal is docketed, Fonns are available at the Pismct Court Clerk's Office and may be obtained electronically at: www caB IIsoonrts.goy
Copy I - Send to Appellee (together with an uncompleted Fonn B) Copy 2 & 3 - Send to Clerk, Dismct Court with Notice of Appeal or Eighth Circuit (see above) Copy 4 - Retain
D I verify tbatlbe origi.alor Ibis pleading has been signed and Ihall will mainlain Ihe pleading i. aeeomanee witb 8" Cir.R. lSA(a).

Case 4:04-cv-00846-CAS Document 175 Filed 07/13/2006 Page 8 of 8

 
 MOED - CM/ECF (LIVE) - Docket Report

https://ecf.moed.uscourts.gov/cgi-bin/DktRpt.pl?245381379410157-L_...

ADR, APPEAL, CLOSED, PROTO, TRCK2
U.S. District Court Eastern District of Missouri (LIVE) (St. Louis) CIVIL DOCKET FOR CASE #: 4:04-cv-00846-CAS

EEOC, et al. v. Convergys Customer Management Group, Inc. Assigned to: Honorable Charles A. Shaw Cause: 42:12101 Americans with Disabilities Act

Date Filed: 07/08/2004 Date Terminated: 04/18/2006 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Barbara A. Seely EEOC 1222 Spruce Street Room 8.100 St. Louis, MO 63103 314-539-7910 Fax: 314-539-7895 Email: barbara.seely@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donna L. Harper SEDEY HARPER, P.C. 2711 Clifton Avenue St. Louis, MO 63139 314-773-3566 Fax: 314-773-3615 Email: dharper@sedeyharper.com TERMINATED: 03/09/2006 LEAD ATTORNEY

Robert G. Johnson SEDEY HARPER, P.C. 2711 Clifton Avenue St. Louis, MO 63139 314-773-3566 Fax: 314-773-3615 Email: rjohnson@sedeyharper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

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Intervenor Plaintiff Ahmet Yigit Demerelli
V. Defendant Convergys Customer Management Group, Inc.

represented by Michael J. Fagras LAMPIN AND KELL 4700 Mexico Road St. Peters, MO 63376 636-498-4000 Fax: 636-757-0198 Email: mfagras@hotmail.com ATTORNEY TO BE NOTICED
represented by Erica L. Freeman THOMPSON COBURN One US Bank Plaza Suite 26 St. Louis, MO 63101 314-552-6000 Fax: 314-552-7128 Email: efreeman@thompsoncoburn.com ATTORNEY TO BE NOTICED
Laura M. Jordan THOMPSON COBURN One US Bank Plaza Suite 26 St. Louis, MO 63101 314-552-6000 Fax: 314-552-7000 Email: ljordan@thompsoncoburn.com ATTORNEY TO BE NOTICED
Mary M. Bonacorsi THOMPSON COBURN One US Bank Plaza Suite 26 St. Louis, MO 63101 314-552-6014 Fax: 314-552-7014 Email: mbonacorsi@thompsoncoburn.com ATTORNEY TO BE NOTICED

Date Filed 07/08/2004

# Docket Text
1 COMPLAINT against defendant Convergys Customer Management Group, Inc. Waivers issued 1, Consents issued 2, Disclosure of Corporate Interest issued to deft, Jury Demand,, filed by Equal Employment Opportunity Commission.

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07/16/2004 07/20/2004 07/20/2004 07/22/2004 07/27/2004
08/10/2004 09/03/2004 09/03/2004 09/03/2004
09/10/2004 09/10/2004
09/13/2004
10/13/2004 11/05/2004

(Attachments: # 1 Civil Cover Sheet # 2 Original Filing Form)(SAJ, ) (Entered: 07/08/2004)
2 ENTRY of Appearance by Laura M. Jordan Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 07/16/2004)
3 CJRA ORDER (jgw). Judge Terry I. Adelman termed. Case reassigned to Judge Carol E. Jackson for all further proceedings. (KLH, ) (Entered: 07/20/2004)
4 ENTRY of Appearance by Michael J. Fagras Plaintiff Equal Employment Opportunity Commission. (Fagras, Michael) (Entered: 07/20/2004)
5 MOTION to Withdraw as Attorney ;attorney/firm Michael J. Fagras. (Fagras, Michael) (Entered: 07/22/2004)
6 ORDERED that attorney Michael Fagras' Motion to Withdraw his appearance as co-counsel for plaintiff 5 is granted. Attorney Michael J. Fagras terminated, notified by mail. Signed by Judge Carol E. Jackson on 7/27/04. (KLH, ) Modified on 7/27/2004 (KLH, ). (Entered: 07/27/2004)
7 Intervenor COMPLAINT JuryDemand,, filed by Ahmet Yigit Demerelli.(Fagras, Michael) (Entered: 08/10/2004)
8 ENTRY of Appearance by Mary M. Bonacorsi Defendant Convergys Customer Management Group, Inc.. (Bonacorsi, Mary) (Entered: 09/03/2004)
9 ANSWER AND AFFIRMATIVE DEFENSES to Complaint by Convergys Customer Management Group, Inc..(Jordan, Laura) Modified on 9/7/2004 (JMW, ), added the words "AND AFFIRMATIVE DEFENSES". (Entered: 09/03/2004)
10 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Defendant Convergys Customer Management Group, Inc. Parent companies: Convergys Corporation, Subsidiaries: None, Publicly held company: None,. (Jordan, Laura) (Entered: 09/03/2004)
11 ORDER this case shall be returned to the Clerk of the Court for reassignment to another District Judge. Signed by Judge Carol E. Jackson on 9/10/04. (LLW, ) (Entered: 09/10/2004)
12 ORDER REASSIGNING CASE (JGW). Case reassigned to Judge Charles A. Shaw for all further proceedings. Judge Carol E. Jackson no longer assigned to case pursuant to the Court's Order of this datesigned on 9/10/04. (LLW, ) (Entered: 09/10/2004)
13 RULE 16 ORDER This case is assigned to Track: 2. Joint Scheduling Plan due by 10/21/2004. Rule 16 Conference set for 11/5/2004 09:40 AM in Courtroom 12N before Honorable Charles A. Shaw. Signed by Judge Charles A. Shaw on 9/13/04. (KXS, ) (Entered: 09/13/2004)
14 JOINT SCHEDULING PLAN by Plaintiff Equal Employment Opportunity Commission. JOINT PROPOSED SCHEDULING PLAN. (Seely, Barbara) (Entered: 10/13/2004)
15 CASE MANAGEMENT ORDER This case is assigned to Track: standard Motion to Join Parties due by 12/20/2004. Discovery Completion due by

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11/05/2004
11/16/2004 12/10/2004
12/29/2004 01/24/2005
01/28/2005 02/01/2005 03/16/2005 03/16/2005 03/21/2005 04/25/2005

7/11/2005. ADR Future Reference 1/24/2005. Dispositive Motions due by 9/19/2005. Jury Trial set for 2/13/2006 09:00 AM before Honorable Charles A. Shaw. Pretrial Conference set for 2/9/2006 02:00 PM before Honorable Charles A. Shaw. Pretrial Compliance due by 1/25/2006.. Signed by Judge Charles A. Shaw on 11/5/04. (JWJ, ) (Entered: 11/05/2004)
16 Minute Entry for proceedings held before Judge Charles A. Shaw : Rule 16 Conference held on 11/5/2004. Parties present in person. Scheduling conference held in courtroom. Case management order to follow. (Court Reporter or FTR Gold Operator initials:none.) (FTR Gold yes or no: no.) (proceedings started: 9:49 am.) (proceedings ended: 9:56 am.) (MRC, ) (Entered: 11/08/2004)
17 MOTION to Intervene by Intervenor Plaintiff Ahmet Yigit Demerelli. (Fagras, Michael) (Entered: 11/16/2004)
18 MEMORANDUM AND ORDER IT IS HEREBY ORDERED that movant Ahmet Demerelli's mtn to intervene is GRANTED. (#17) IT IS FURTHER ORDERED that the Clerk of Court shall amend the caption of this case...IT IS FURTHER ORDERED that deft shall file its response to pltf/intervenor's complaint within 20 days of the date of this memorandum and order. Signed by Judge Charles A. Shaw on 12/10/04. (KXS, ) (Entered: 12/13/2004)
19 ANSWER to Intervenor Complaint Defendant by Convergys Customer Management Group, Inc..(Jordan, Laura) (Entered: 12/29/2004)
20 ORDER REFERRING CASE to Alternative Dispute Resolution. This case is referred to: Mediation Designation of Lead Counsel: Barbara A.Seely ADR Completion Deadline due by 3/25/2005. Designation of Neutral due by 2/8/2005. ADR Conference Schedule due by 2/8/2005.. Signed by Judge Charles A. Shaw on 1/24/2005. (MRC, ) (Entered: 01/24/2005)
21 Joint MOTION for Protective Order by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1)(Seely, Barbara) (Entered: 01/28/2005)
22 AGREED AND STIPULATED PROTECTIVE ORDER . Signed by Judge Charles A. Shaw on 2/1/05. (KXS, ) (Entered: 02/02/2005)
23 Designation of Neutral by parties and ADR Conference Report by Plaintiff Equal Employment Opportunity Commission Neutral: Charles Elbert Date of Conference: 03/16/05 time: 9:00 a.m. Location: Other(Seely, Barbara) (Entered: 03/16/2005)
24 NOTICE of Appointment of Neutral Neutral name: Charles Elbert, Neutral selected by parties, notice of appointment and order of referral mailed to Neutral Elbert.(SAC, ) (Entered: 03/16/2005)
25 ADR COMPLIANCE REPORT by Neutral: Charles Elbert, Date of Conference: March 16, 2005, participated in good faith: yes, the parties DID NOT achieve a settlement.(SAC, ) (Entered: 03/23/2005)
26 MOTION for Extension of Time to File ;Extension to file the following: Answers and Objections to Plaintiff's First Requests for Admissions, Fourth Interrogatories, and Sixth Request for Production of Documents ;Proposed extension date 5/16/2005 by Defendant Convergys Customer Management Group, Inc.. (Jordan,

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04/28/2005
06/22/2005 06/22/2005
07/01/2005 07/05/2005 07/11/2005 07/12/2005
07/26/2005 07/26/2005

Laura) Modified on 4/25/2005 (JWJ, ). (Entered: 04/25/2005)
27 ORDER IT IS HEREBY ORDERED that defendant's motion for an extension of time to file answersand objections to discovery requests is GRANTED. [Doc. 26]IT IS FURTHER ORDERED that defendant shall provide to plaintiff its answers andobjections to plaintiff's First Requests for Admissions, Fourth Interrogatory Request, and SixthRequest for Production of Documents no later than May 16, 2005. Signed by Judge Charles A. Shaw on 4/28/05. (KXS, ) (Entered: 04/28/2005)
28 MOTION for Protective Order by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 06/22/2005)
29 MEMORANDUM in Support of Motion re 28 MOTION for Protective Order filed by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit A-30(b)(6) Notice# 2 Exhibit B - EEOC's 5th Interrogatories# 3 Exhibit C-EEOC's 7th Request for Production# 4 Exhibit D - EEOC's 2nd Request for Admissions# 5 Exhibit E - Depo of T. Horstmann# 6 Exhibit F Affidavit of Laura Jordan)(Jordan, Laura) (Entered: 06/22/2005)
30 MEMORANDUM in Opposition re 28 MOTION for Protective Order filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Seely, Barbara) (Entered: 07/01/2005)
31 ORDER IT IS HEREBY ORDERED that a hearing on defendant Convergys Customer ManagementGroup, Inc.'s motion for protective order is scheduled for Tuesday, July 12, 2005, at 9:30 a.m. inCourtroom 12-North. Signed by Judge Charles A. Shaw on 7/5/05. (KXS, ) (Entered: 07/05/2005)
32 ENTRY of Appearance by Erica L. Freeman Defendant Convergys Customer Management Group, Inc.. (Freeman, Erica) (Entered: 07/11/2005)
33 Minute Entry for proceedings held before Judge Charles A. Shaw : Motion Hearing held on 7/12/2005 re 28 MOTION for Protective Order filed by Convergys Customer Management Group, Inc.,. Hearing on deft's motion for protective order arguments heard. Motion is granted in part and denied in part. (Court Reporter or FTR Gold Operator initials:Lynn Shrum.) (FTR Gold yes or no: no.) (proceedings started: 9:45.) (proceedings ended: 10:15.) (JWJ, ) (Entered: 07/13/2005)
34 RESPONSE TO COURT ORDER re 28 MOTION for Protective Order by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Proposed Order)(Jordan, Laura) (Entered: 07/26/2005)
35 ORIGINAL TRANSCRIPT (Pilot) procedings of Hearing held on 7/12/05 before Judge Charles A. Shaw. Court Reporter: L. Shrum. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, ) (Entered: 07/26/2005)

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07/27/2005 09/06/2005 09/06/2005 09/06/2005 09/07/2005 09/08/2005
09/14/2005 09/14/2005 09/23/2005

36 ORDER -IT IS HEREBY ORDERED that defendant Convergys Customer Management Group Inc.'s motion for protective order is GRANTED, except as to the following:...[SEE ORDER FOR FURTHER DETAILS] re 28 MOTION for Protective Order filed by Convergys Customer Management Group, Inc., . Signed by Judge Charles A. Shaw on 7/27/2005. (MRC, ) (Entered: 07/27/2005)
37 MOTION for Leave to File Amended Answer by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 09/06/2005)
38 AMENDED ANSWER to Plaintiff EEOC's Complaint by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) Modified on 10/6/2005 (LGK, ). PURSUANT TO ORDER ENTERED 10/5/05 THIS DOCUMENT HAS BEEN DELETED. (Entered: 09/06/2005)
39 AMENDED ANSWER to Plaintiff-Intervener's Complaint by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) Modified on 10/6/2005 (LGK, ). PURSUANT TO ORDER ENTERED 10/5/05 THIS DOCUMENT HAS BEEN DELETED. (Entered: 09/06/2005)
40 MOTION for Extension of Time to File ;Extension to file the following: Motion for Summary Judgment ;Proposed extension date September 30, 2005 by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 09/07/2005)
41 ORDER IT IS HEREBY ORDERED that defendant's motion for an extension of time to file itsmotion for summary judgment is GRANTED. [Doc. 40]IT IS FURTHER ORDERED that the Case Management Order issued November 5, 2004,is modified as follows: (see order for further details). IT IS FURTHER ORDERED that except as modified herein, the provisions of the CaseManagement Order issued November 5, 2004, remain in full force and effect, particularly SectionII, Order Relating to Trial.Failure to comply with any part of this Order may result in the imposition of sanctions,including but not limited to dismissal of the action, entry of a default judgment or restrictionson the admissibility of certain evidence. See Local Rule 5.04. Dispositive Motions due by 9/30/2005. Signed by Judge Charles A. Shaw on 9/8/05. (KXS, ) (Entered: 09/08/2005)
42 MEMORANDUM in Opposition re 37 MOTION for Leave to File Amended Answer filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4)(Seely, Barbara) (Entered: 09/14/2005)
43 AMENDED MEMORANDUM in Opposition re 37 MOTION for Leave to File Amended Answer filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Seely, Barbara) Modified on 9/15/2005 (MRC, ). (Entered: 09/14/2005)
44 Defendant's Reply Memorandum In Support of Motion re 37 MOTION for Leave to File Amended Answer filed by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Jordan, Laura) Modified on 9/26/2005 (MRC, ).[Document was filed as "Memorandum In Support of Motion" Docket Text Modified appropriately to reflect document filed.] (Entered: 09/23/2005)

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09/26/2005 09/28/2005
09/29/2005 09/30/2005 09/30/2005
09/30/2005 09/30/2005 10/03/2005 10/05/2005

45 MOTION for Hearing re 37 MOTION for Leave to File Amended Answer, 38 Amended Answer to Complaint, 39 Amended Answer to Complaint by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 09/26/2005)
46 ORDER - IT IS HEREBY ORDERED that plaintiff and plaintiff-intervenor's motion for oral argument on defendant's motion for leave to file an amended answer is DENIED. IT IS FURTHER ORDERED that plaintiff and plaintiff-intervenor's alternative motion for leave to file a sur-reply is GRANTED. IT IS FURTHER ORDERED that plaintiff and plaintiff-intervenor shall file any sur-reply no later than September 29, 2005 re 45 MOTION for Hearing, filed by Equal Employment Opportunity Commission, . Signed by Judge Charles A. Shaw on 9/28/2005. (MRC, ) (Entered: 09/28/2005)
47 SURREPLY to Motion re 37 MOTION for Leave to File Amended Answer filed by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 09/29/2005)
48 MOTION for Summary Judgment by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 09/30/2005)
49 MEMORANDUM in Support of Motion re 48 MOTION for Summary Judgment filed by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit A Part 1 of 3# 2 Exhibit A Part 2 of 3# 3 Exhibit A Part 3 of 3# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D# 7 Exhibit E# 8 Exhibit F# 9 Exhibit G# 10 Exhibit H# 11 Exhibit I# 12 Exhibit J# 13 Exhibit K# 14 Exhibit L# 15 Exhibit M# 16 Exhibit N# 17 Exhibit O# 18 Exhibit P)(Jordan, Laura) (Entered: 09/30/2005)
50 MOTION for Leave to Submit Memorandum of Law in Support of Motion for Summary Judgment in Excess of Fifteen Pages by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 09/30/2005)
51 MOTION for Partial Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22 # 23 # 24 # 25)(Seely, Barbara) (Entered: 09/30/2005)
Docket Text ORDER re 50 MOTION for Leave to Submit Memorandum of Law in Support of Motion for Summary Judgment in Excess of Fifteen Pages by Defendant Convergys Customer Management Group, Inc. (Jordan, Laura) filed by Convergys Customer Management Group, Inc.; ORDERED GRANTED. Signed by Judge Charles A. Shaw on October 3, 2005. (EMW) (Entered: 10/03/2005)
52 MEMORANDUM AND ORDER re: 37 MOTION for Leave to File Amended Answer filed by Convergys Customer Management Group, Inc., motion is granted. FURTHER ORDERED that the Clerk of Court shall delete documents 38 and 39 from the record. FURTHER ORDERED that deft. Convergys Customer Management Group, Inc., shall file its answers to pltf. and pltf-intervenor's complaints no later than 10/11/05. Response to Court due by 10/11/2005.. Signed by Judge Charles A. Shaw on 10/5/05. (LGK, ) (Entered: 10/05/2005)

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10/06/2005 10/06/2005 10/28/2005 10/28/2005
10/31/2005
10/31/2005 10/31/2005

53 AMENDED ANSWER to Plaintiff EEOC's Complaint by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 10/06/2005)
54 AMENDED ANSWER to Plaintiff-Intervener's Complaint by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 10/06/2005)
55 MOTION for Leave to File in Excess of Page Limitation by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 10/28/2005)
56 STATEMENT of Material Facts re 48 MOTION for Summary Judgment and Response to Defendant's Statement of Undisputed Facts filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Deposition of Ahmet Demirelli# 2 Exhibit Village Square Office Lease# 3 Exhibit Deposition of Janet Gail Weaver# 4 Exhibit Affidavit of Donald G. Volmert# 5 Exhibit Deposition of Stephen Brookins# 6 Exhibit Counseling Record Form# 7 Exhibit Counseling Record Form# 8 Exhibit Deposition of Laura Ashton# 9 Exhibit Associate Guide# 10 Exhibit Deposition of Loretta Hill# 11 Exhibit Deposition of Teresa Horstmann# 12 Exhibit Affidavit of Yigit Demirelli# 13 Exhibit Deposition of Chester Moyer# 14 Exhibit Westlaw# 15 Exhibit Deposition of Tara Match# 16 Exhibit Deposition of Marlon D. Mitchell# 17 Exhibit Deposition of LaShonDa R. Aldridge# 18 Errata Counseling Record Form# 19 Exhibit Employee Schedule Exception Report# 20 Exhibit Counseling Record Form# 21 Exhibit Semi-Annual Performance Appraisal Worksheet# 22 Exhibit Written Appraisal of Performance Measurement# 23 Exhibit Transcript of Hearing Before the Honorable Charles A. Shaw# 24 Exhibit Deposition of Marsha Etheridge# 25 # 26 Exhibit Job Description# 27 Exhibit Site Plan# 28 Exhibit Associate Review# 29 Exhibit Counseling Record Form# 30 Exhibit Counseling Record Form# 31 Exhibit Counseling Record Form# 32 Exhibit Summary of Discussion with Yigit Demirreli# 33 Exhibit Employee Attendance Report# 34 Exhibit 365 day attendance record for tardies# 35 Exhibit Counseling Record Form# 36 Exhibit U.S. Department of Justice Immigration and Naturalization Service# 37 Exhibit Individual Schedules# 38 Exhibit Citizenship and Immigration Services)(Seely, Barbara) (Entered: 10/28/2005)
58 MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff Equal Employment Opportunity Commission'smotion for leave to submit memorandum in opposition to defendant's motion for summary judgmentin excess of fifteen pages is GRANTED in part and DENIED in part. [Doc. 55]IT IS FURTHER ORDERED that plaintiff shall file its memorandum in opposition todefendant's motion for summary judgement not to exceed 20 pages no later than Wednesday,November 2, 2005.IT IS FURTHER ORDERED that the Clerk of Court shall delete document 57 from therecord. Signed by Judge Charles A. Shaw on 10/31/05. (KXS, ) (Entered: 10/31/2005)
***REMARK - there will be no document #57 in this case; it has been deleted pursuant to an order entered 10/31/05 (KXS, ) (Entered: 10/31/2005)
59 RESPONSE in Opposition re 51 MOTION for Partial Summary Judgment filed by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Jordan, Laura) (Entered: 10/31/2005)

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11/02/2005 11/10/2005
11/10/2005 11/10/2005
11/15/2005 11/15/2005 11/16/2005 11/17/2005
11/17/2005 01/19/2006

60 MEMORANDUM in Opposition re 48 MOTION for Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 11/02/2005)
61 REPLY to Response to Motion re 51 MOTION for Partial Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Counseling Record Form for Marc Jackson# 2 Exhibit Counseling Record Form for Joshua Caudle# 3 Exhibit Counseling Record Form for Lucretia Brown# 4 Exhibit Deposition of Marsha Etheridge - 8/31/05# 5 Exhibit Deposition of LaShonDa R. Aldridge - 3/4/05# 6 Exhibit Deposition of Stephen Brookins 3/14/05# 7 Exhibit Transcript of Hearing Before The Honorable Charles A. Shaw - 7/12/05# 8 Exhibit Employee Attendance Report - Yigit Demirelli# 9 Exhibit Counseling Record Form -Yigit Demirelli)(Seely, Barbara) (Entered: 11/10/2005)
62 MOTION to Clarify by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 11/10/2005)
Docket Text ORDER re 62 MOTION to Clarify by Defendant Convergys Customer Management Group, Inc.(Jordan, Laura) filed by Convergys Customer Management Group, Inc.; ORDERED GRANTED. IT IS HEREBY ORDERED that defendant's motion to clarify is GRANTED. IT IS FURTHER ORDERED that defendant shall file its reply in support of its motion for summary judgment no later than November 15, 2005. Signed by Judge Charles A. Shaw on November 10, 2005. (EMW) (Entered: 11/10/2005)
63 STATEMENT of Material Facts re 48 MOTION for Summary Judgment Reply filed by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Jordan, Laura) (Entered: 11/15/2005)
64 REPLY to Response to Motion re 48 MOTION for Summary Judgment filed by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 11/15/2005)
65 MOTION for Leave to File Surreply to Defendant's Reply in Support of Motion for Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 11/16/2005)
Docket Text ORDER re 65 MOTION for Leave to File Surreply to Defendant's Reply in Support of Motion for Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) filed by Equal Employment Opportunity Commission; ORDERED GRANTED. IT IS HEREBY ORDERED that plaintiff's motion for leave to file a surreply is GRANTED. IT IS FURTHER ORDERED that plaintiff shall file its surreply no later than November 19, 2005.Signed by Judge Charles A. Shaw on November 17, 2005. (EMW) (Entered: 11/17/2005)
66 SURREPLY to Motion re 48 MOTION for Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1)(Seely, Barbara) (Entered: 11/17/2005)
67 ORDER IT IS HEREBY ORDERED that defendant's motion for summary judgment is GRANTEDin part and DENIED in part as set forth in this

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01/19/2006
01/23/2006 01/24/2006 01/25/2006
01/25/2006 01/25/2006 01/25/2006 01/25/2006 01/25/2006 01/25/2006 01/25/2006 01/25/2006

memorandum and order. [Doc. 48]IT IS FURTHER ORDERED that plaintiff's motion for partial summary judgment isDENIED without prejudice. [Doc. 51] Signed by Judge Charles A. Shaw on 1/19/06. (JWJ, ) (Entered: 01/19/2006)
68 JUDGMENT (Partial) IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that partial judgment isGRANTED in favor of defendant Convergys Customer Management Group, Inc. and against plaintiffEqual Employment Opportunity Commission and plaintiff-intervenor Ahmet Yigit Demirelli onplaintiff's American with Disabilities Act claims that defendant failed to reasonably accommodate hisrequest for a parking space, to take a headset home, and to have an assigned seat.. Signed by Judge Charles A. Shaw on 1/19/06. (JWJ, ) (Entered: 01/19/2006)
69 MOTION to Alter Judgment by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2 Exhibit Exhibit 3 - Declaration of Tara Match)(Seely, Barbara) (Entered: 01/23/2006)
70 MOTION for Extension of Time to File ;Extension to file the following: Pretrial Materials ;Proposed extension date January 25, 2006 by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 01/24/2006)
Docket Text ORDER re 70 MOTION for Extension of Time to File; Extension to file the following: Pretrial Materials; Proposed extension date January 25, 2006 by Defendant Convergys Customer Management Group, Inc. (Jordan, Laura) filed by Convergys Customer Management Group, Inc.; ORDERED GRANTED. Signed by Judge Charles A. Shaw on January 25, 2006. (EMW) (Entered: 01/25/2006)
71 Exhibit List by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission.. (Seely, Barbara) (Entered: 01/25/2006)
72 Witness List by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 01/25/2006)
73 Stipulation of Uncontested Facts by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission, Defendant Convergys Customer Management Group, Inc.. (Seely, Barbara) (Entered: 01/25/2006)
74 SUPPLEMENTAL re Docket Text Order, Plaintiffs' Designation of Deposition Testimony Proposed to be Offered Into Evidence by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 01/25/2006)
75 Interrogatory Answer List by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 01/25/2006)
76 Witness List by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 01/25/2006)
77 Exhibit List by Defendant Convergys Customer Management Group, Inc... (Jordan, Laura) (Entered: 01/25/2006)
78 Deposition List by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 01/25/2006)

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01/25/2006 01/25/2006 01/25/2006 01/25/2006 01/25/2006 01/26/2006 01/26/2006
01/27/2006
01/27/2006 01/30/2006 01/31/2006

79 Proposed Jury Instructions by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 01/25/2006)
80 Proposed Jury Instructions by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 01/25/2006)
81 Proposed Voir Dire by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 01/25/2006)
82 Proposed Jury Instructions by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (NOTE: document deleted per order entered 3/9/06; attorney to refile corrected document) Modified on 3/10/2006 (KXS, ). (Entered: 01/25/2006)
83 Proposed Jury Instructions by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (NOTE: document deleted per order entered 3/9/06; attorney to refile corrected document) Modified on 3/10/2006 (KXS, ). (Entered: 01/25/2006)
84 MOTION for Extension of Time to File Proposed Jury Instructions with Citations by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1)(Seely, Barbara) (Entered: 01/26/2006)
85 SCHEDULING ORDER: ORDERED that the trial setting of 2/13/06 is vacated. Jury Trial reset for 3/20/2006 09:00 AM in Courtroom 12N before Honorable Charles A. Shaw. Pretrial Conference reset for 3/16/2006 02:00 PM in Courtroom 12N before Honorable Charles A. Shaw.. Signed by Judge Charles A. Shaw on 12/26/06. (LGK, ) (Entered: 01/26/2006)
Docket Text ORDER re 84 MOTION for Extension of Time to File Proposed Jury Instructions with Citations by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Attachments: # )(Seely, Barbara) filed by Equal Employment Opportunity Commission, Ahmet Yigit Demerelli; ORDERED GRANTED. Signed by Judge Charles A. Shaw on January 27, 2006. (EMW) (Entered: 01/27/2006)
86 Proposed Jury Instructions (with citations) by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (MRC, ) (NOTE: document deleted per order entered 3/9/06; attorney to refile corrected document) Modified on 3/10/2006 (KXS, ). (Entered: 01/30/2006)
87 MOTION for Extension of Time to File Response/Reply as to 69 MOTION to Alter Judgment by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 01/30/2006)
Docket Text ORDER re 87 MOTION for Extension of Time to File Response/Reply as to 69 MOTION to Alter Judgment by Defendant Convergys Customer Management Group, Inc. (Jordan, Laura) filed by Convergys Customer Management Group, Inc.; ORDERED GRANTED. IT IS HEREBY ORDERED that defendant's motion for an extension of time to respond to plaintiff's motion to alter or amend judgment is GRANTED. IT IS FURTHER ORDERED that defendant shall file its response to plaintiff's motion to alter or amend judgment no later than February 6, 2006. Signed by Judge Charles A. Shaw on January 31,

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01/31/2006 02/02/2006
02/06/2006 03/07/2006 03/08/2006 03/09/2006
03/09/2006
03/10/2006 03/10/2006 03/31/2006
03/31/2006

2006. (EMW) (Entered: 01/31/2006)
88 Joint MOTION to Continue Trial Setting by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 01/31/2006)
89 ORDER AMENDING CASE MANAGEMENT ORDER IT IS HEREBY ORDERED that the parties' joint motion for continuance is GRANTED.[Doc. 88]IT IS FURTHER ORDERED that the Case Management Order of November 5, 2004 andmodified on September 8, 2005 is modified as follows: Jury Trial set for 4/10/2006 09:00 AM in Courtroom 12N before Honorable Charles A. Shaw. Pretrial Conference set for 4/6/2006 02:00 PM in Courtroom 12N before Honorable Charles A. Shaw. Signed by Judge Charles A. Shaw on 2/2/06. (KXS, ) (Entered: 02/02/2006)
90 RESPONSE in Opposition re 69 MOTION to Alter Judgment filed by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 02/06/2006)
91 MOTION to Withdraw 86 Proposed Jury Instructions, 82 Proposed Jury Instructions, 83 Proposed Jury Instructions by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 03/07/2006)
92 MOTION to Withdraw as Attorney ;attorney/firm Donna L. Harper by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Harper, Donna) (Entered: 03/08/2006)
Docket Text ORDER re 92 MOTION to Withdraw as Attorney; attorney/firm Donna L. Harper by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Harper, Donna) filed by Equal Employment Opportunity Commission,Ahmet Yigit Demerelli; ORDERED GRANTED. Signed by Judge Charles A. Shaw on March 9, 2006. (EMW) (Entered: 03/09/2006)
93 ORDER IT IS HEREBY ORDERED that plaintiffs' motion to withdraw jury instructions isGRANTED. [Doc. 91]IT IS FURTHER ORDERED that the Clerk of Court shall delete documents 82, 83, and86 from the record.IT IS FURTHER ORDERED that plaintiffs shall file their corrected jury instructions nolater than March 13, 2006. Signed by Judge Charles A. Shaw on 3/9/06. (KXS, ) (Entered: 03/09/2006)
94 Proposed Jury Instructions by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 03/10/2006)
95 Proposed Jury Instructions by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 03/10/2006)
96 MOTION in Limine To Exclude Evidence that Demirelli Lacked Employment Authorization from September 10, 2001 Through April 4, 2002 by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4)(Seely, Barbara) (Entered: 03/31/2006)
97 MOTION in Limine To Exclude Evidence of Additional Tardies Or, In The Alternative, For A Limiting Instruction by Intervenor Plaintiff Ahmet Yigit

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03/31/2006 03/31/2006 03/31/2006 03/31/2006 03/31/2006 03/31/2006 03/31/2006
03/31/2006 03/31/2006 03/31/2006

Demerelli, Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12)(Seely, Barbara) (Entered: 03/31/2006)
98 MOTION in Limine To Exclude Evidence Of No Call/No Show by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2)(Seely, Barbara) (Entered: 03/31/2006)
99 MOTION in Limine To Exclude Defendant's Exhibit B And Evidence Of Dates Demirelli Was Tardy Arriving At Work by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8)(Seely, Barbara) (Entered: 03/31/2006)
100 MOTION in Limine To Exclude Evidence That Demirelli Lacked Employment Authorization After April 4, 2003 And Evidence That Deferred Action Was Not Immediately Renewed by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1)(Seely, Barbara) (Entered: 03/31/2006)
101 OBJECTION to Pretrial re 78 Deposition List And Plaintiffs' Additional Deposition Designations by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. Related document: 78 Deposition List filed by Convergys Customer Management Group, Inc.,.(Seely, Barbara) (Entered: 03/31/2006)
102 Proposed Jury Instructions by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 03/31/2006)
103 Proposed Jury Instructions by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 03/31/2006)
104 OBJECTION to Pretrial re 72 Witness List by Defendant Convergys Customer Management Group, Inc.. Related document: 72 Witness List filed by Equal Employment Opportunity Commission,, Ahmet Yigit Demerelli,. (Attachments: # 1 Exhibit A to Defendant's Objections to Plaintiffs' Witness List# 2 Exhibit B to Defendant's Objections to Plaintiffs' Witness List# 3 Exhibit C to Defendant's Objections to Plaintiffs' Witness List# 4 Exhibit D to Defendant's Objections to Plaintiffs' Witness List)(Jordan, Laura) (Entered: 03/31/2006)
105 OBJECTION to Pretrial re 74 Supplemental Plaintiff's Designation of Depositon Testimony by Defendant Convergys Customer Management Group, Inc.. Related document: 74 Supplemental filed by Equal Employment Opportunity Commission,, Ahmet Yigit Demerelli,.(Jordan, Laura) (Entered: 03/31/2006)
106 OBJECTION to Pretrial re Plaintiffs' Discovery Designations by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 03/31/2006)
107 OBJECTION to Pretrial re 95 Proposed Jury Instructions, 103 Proposed Jury Instructions, 102 Proposed Jury Instructions, 94 Proposed Jury Instructions by Defendant Convergys Customer Management Group, Inc.. Related document: 95 Proposed Jury Instructions filed by Equal Employment Opportunity Commission,,

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03/31/2006 03/31/2006 03/31/2006 03/31/2006 03/31/2006
03/31/2006 04/03/2006
04/04/2006 04/04/2006 04/04/2006

103 Proposed Jury Instructions filed by Equal Employment Opportunity Commission,, Ahmet Yigit Demerelli,, 102 Proposed Jury Instructions filed by Equal Employment Opportunity Commission,, Ahmet Yigit Demerelli,, 94 Proposed Jury Instructions filed by Equal Employment Opportunity Commission,.(Jordan, Laura) (Entered: 03/31/2006)
108 MOTION in Limine to Exclude Evidence re Janet Weaver by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit A to Defendant's Motion in Limine to Exclude Evidence re Janet Weaver)(Jordan, Laura) (Entered: 03/31/2006)
109 MOTION in Limine to Exclude Evidence re Parking by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 03/31/2006)
110 MOTION in Limine to Exclude Evidence re Attendance Records of other Convergys Employees by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 03/31/2006)
111 MOTION in Limine to Exclude Evidence re Yigit Demirelli's Performance Reviews by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 03/31/2006)
112 MOTION in Limine to Exclude Evidence as to Defendant's Net Worth or Reference to Punitive Damages by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit A to Defendant's Motion in Limine to Exclude Evidence as to Defendant's Net Worth or Reference to Punitive Damages)(Jordan, Laura) (Entered: 03/31/2006)
113 MOTION in Limine to Exclude Evidence re Compensatory Damages by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit A to Defendant's Motion in Limine to Exclude Evidence re Compensatory Damages)(Jordan, Laura) (Entered: 03/31/2006)
114 ORDER IT IS HEREBY ORDERED that a pretrial conference shall beheld in the instant matter pursuant to Fed.R.Civ.P. 16(d) onThursday, April 6, 2006, at 11:00 a.m. in Courtroom 12-N. Counselshould be prepared to summarize their case in three sentences orless, and to discuss the disposition of any pending motions and anyother issues affecting trial of this matter. Signed by Judge Charles A. Shaw on 4/3/06. (KXS, ) (Entered: 04/03/2006)
115 MEMORANDUM in Opposition re 113 MOTION in Limine to Exclude Evidence re Compensatory Damages filed by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 04/04/2006)
116 MEMORANDUM in Opposition re 112 MOTION in Limine to Exclude Evidence as to Defendant's Net Worth or Reference to Punitive Damages filed by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 04/04/2006)
117 MEMORANDUM in Opposition re 111 MOTION in Limine to Exclude Evidence re Yigit Demirelli's Performance Reviews filed by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 04/04/2006)

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04/04/2006 04/04/2006 04/04/2006 04/04/2006
04/04/2006
04/05/2006 04/05/2006 04/06/2006 04/06/2006
04/09/2006 04/10/2006

118 MEMORANDUM in Opposition re 110 MOTION in Limine to Exclude Evidence re Attendance Records of other Convergys Employees filed by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(Seely, Barbara) (Entered: 04/04/2006)
119 MEMORANDUM in Opposition re 108 MOTION in Limine to Exclude Evidence re Janet Weaver filed by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Seely, Barbara) (Entered: 04/04/2006)
120 MEMORANDUM in Opposition re 109 MOTION in Limine to Exclude Evidence re Parking filed by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4)(Seely, Barbara) (Entered: 04/04/2006)
121 PLAINTIFFS' RESPONSE to 104 objections to Pretrial Plaintiffs' Response To Defendant's Objections To Plaintiffs' Witness List by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. Related document: 104 Objection to Pretrial,, filed by Convergys Customer Management Group, Inc.,. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Seely, Barbara) Modified on 4/5/2006 (KXS, ). (Entered: 04/04/2006)
122 OBJECTION to Pretrial re 77 Exhibit List Plaintiffs' Objections To Defendant's Exhibits by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. Related document: 77 Exhibit List filed by Convergys Customer Management Group, Inc.,.(Seely, Barbara) (Entered: 04/04/2006)
123 OBJECTION to Pretrial re 71 Exhibit List by Defendant Convergys Customer Management Group, Inc.. Related document: 71 Exhibit List filed by Equal Employment Opportunity Commission,, Ahmet Yigit Demerelli,.(Jordan, Laura) (Entered: 04/05/2006)
124 Proposed Jury Instructions by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 04/05/2006)
125 MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs' motion to amend judgment is DENIED. [Doc.69]. Signed by Judge Charles A. Shaw on 4/6/06. (KXS, ) (Entered: 04/06/2006)
126 Minute Entry for proceedings held before Judge Charles A. Shaw : Final Pretrial Conference held on 4/6/2006; arguments heard; motions ruled on the record. (Court Reporter or FTR Gold Operator initials:Sue Moran.) (FTR Gold yes or no: no.) (proceedings started: 11:10 a.m..) (proceedings ended: 12:30 p.m..) (KXS, ) (Entered: 04/07/2006)
127 Proposed Jury Instructions by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 04/09/2006)
128 Minute Entry for proceedings held before Judge Charles A. Shaw : Jury Trial held on 4/10/2006 ; day 1., jury impaneled and plaintiffs evidence commenced but not concluded. (Court Reporter or FTR Gold Operator initials:Sue Moran.) (FTR Gold yes or no: no.) (proceedings started: 9:45.) (proceedings ended: 5:00.) (JWJ, ) (Entered: 04/18/2006)

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04/11/2006
04/12/2006
04/12/2006 04/12/2006 04/12/2006 04/12/2006 04/13/2006
04/13/2006 04/14/2006
04/14/2006 04/14/2006 04/14/2006 04/14/2006 04/18/2006

129 Minute Entry for proceedings held before Judge Charles A. Shaw : Jury Trial resumed but not concluded 4/11/2006 ; day 2. Plaintiffs evidence resumed but not concluded (Court Reporter or FTR Gold Operator initials:sue moran.) (FTR Gold yes or no: no.) (proceedings started: 1:30.) (proceedings ended: 5:00.) (JWJ, ) (Entered: 04/18/2006)
130 Minute Entry for proceedings held before Judge Charles A. Shaw : Jury Trial resumed but not concluded 4/12/2006 ; day 3. Plaintiffs evidence resumed and concluded, defendants evidence commenced but not conluded (Court Reporter or FTR Gold Operator initials:sue moran.) (FTR Gold yes or no: no.) (proceedings started: 9:45.) (proceedings ended: 5:00.) (JWJ, ) (Entered: 04/18/2006)
134 MOTION for Judgment as a Matter of Law at plaintiff claim for compensatory damages by Defendant Convergys Customer Management Group, Inc.. (JWJ, ) (Entered: 04/18/2006)
135 ORDER denying 134 Motion for Judgment as a Matter of Law Signed by Judge Charles A. Shaw on 4/12/06. (JWJ, ) (Entered: 04/18/2006)
136 MOTION for Directed Verdict by Defendant Convergys Customer Management Group, Inc.. (JWJ, ) (Entered: 04/18/2006)
137 ORDER denying 136 Motion for Directed Verdict Signed by Judge Charles A. Shaw on 4/12/06. (JWJ, ) (Entered: 04/18/2006)
131 Minute Entry for proceedings held before Judge Charles A. Shaw : Jury Trial resumed but not concluded 4/13/2006 ; day 4. Defendants evidence resumed and concluded. defendant motions the court for judgment as a matter of law at the close of all evidence. Plaintiff motion for directed verdict both are denied. (Court Reporter or FTR Gold Operator initials:sue moran.) (FTR Gold yes or no: no.) (proceedings started: 1:00.) (proceedings ended: 5:00.) (JWJ, ) (Entered: 04/18/2006)
144 Jury Instructions Refused.(JWJ, ) (Entered: 05/01/2006)
132 Minute Entry for proceedings held before Judge Charles A. Shaw : Jury Trial completed on 4/14/2006 ; day 5. closing arguments made and a verdict is returned. (Court Reporter or FTR Gold Operator initials:sue moran.) (FTR Gold yes or no: no.) (proceedings started: 9:00.) (proceedings ended: 5:00.) (JWJ, ) (Entered: 04/18/2006)
133 Jury Instructions filed. (JWJ, ) (Entered: 04/18/2006)
138 Jury Notes Filed. (JWJ, ) (Entered: 04/18/2006)
139 JURY VERDICT For: Plaintiff Against: Defendant In the Amount of: 114,265.22. (JWJ, ) (Entered: 04/18/2006)
140 Exhibit Receipt by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission, Defendant Convergys Customer Management Group, Inc... (JWJ, ) (Entered: 04/18/2006)
141 JUDGMENT in favor of EEOC and Ahmet Yigit Demerelli against Convergy's Customer Management Group. INC. (SEE JUDGMENT FOR COMPLETE DETAILS) . Signed by Judge Charles A. Shaw on 4/18/06. (JWJ, ) (Entered:

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04/25/2006 05/02/2006
05/02/2006 05/02/2006 05/02/2006
05/04/2006 05/04/2006 05/08/2006 05/09/2006
05/12/2006 05/15/2006 05/15/2006 05/16/2006

04/18/2006)
142 First MOTION for Bill of Costs by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 04/25/2006)
145 MOTION for Bill of Costs by Intervenor Plaintiff Ahmet Yigit Demerelli. (Attachments: # 1 # 2 Bill of Costs# 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Exhibit 5# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8)(Fagras, Michael) (Entered: 05/02/2006)
146 MOTION for Attorney Fees and Additional Time by Intervenor Plaintiff Ahmet Yigit Demerelli. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Fagras, Michael) (Entered: 05/02/2006)
147 MOTION for Judgment as a Matter of Law Renewed, Remittitur, or in the Alternative for a New Trial by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 05/02/2006)
148 MEMORANDUM in Support of Motion re 147 MOTION for Judgment as a Matter of Law Renewed, Remittitur, or in the Alternative for a New Trial filed by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 05/02/2006)
149 MOTION for Permanent Injunction by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1)(Seely, Barbara) (Entered: 05/04/2006)
150 MOTION for Awared for Entry of Prejudgment Interest by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 # 2)(Seely, Barbara) (Entered: 05/04/2006)
151 MEMORANDUM in Support of Motion re 146 MOTION for Attorney Fees and Additional Time filed by Intervenor Plaintiff Ahmet Yigit Demerelli. (Attachments: # 1 Exhibit 1)(Fagras, Michael) (Entered: 05/08/2006)
152 MEMORANDUM in Opposition re 147 MOTION for Judgment as a Matter of Law Renewed, Remittitur, or in the Alternative for a New Trial filed by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 05/09/2006)
153 OBJECTION to 142 Bill of Costs and Suggestions in Support filed by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Jordan, Laura) (Entered: 05/12/2006)
154 REPLY to Response to Motion re 142 First MOTION for Bill of Costs filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1)(Seely, Barbara) (Entered: 05/15/2006)
155 MOTION for Extension of Time to File Response/Reply to Plaintiff-Intervener Motion for Attorney's Fees by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 05/15/2006)
Docket Text ORDER re 155 MOTION for Extension of Time to File Response/Reply to Plaintiff-Intervener Motion for Attorney's Fees by Defendant Convergys Customer Management Group, Inc.(Jordan, Laura) filed by Convergys Customer Management Group, Inc.; ORDERED GRANTED. IT IS HEREBY

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05/16/2006 05/17/2006 05/19/2006 05/19/2006 05/22/2006
05/22/2006
05/23/2006 05/25/2006 05/26/2006

ORDERED that defendant's motion for an extension of time to respond to plaintiff-intervener's motion for attorney's fees is GRANTED. IT IS FURTHER ORDERED that defendant shall file its response to plaintiff-intervener's motion for attorney's fees no later than May 26, 2006. Signed by Judge Charles A. Shaw on May 16, 2006. (EMW) (Entered: 05/16/2006)
156 RESPONSE in Opposition re 149 MOTION for Permanent Injunction filed by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit A)(Jordan, Laura) (Entered: 05/16/2006)
157 REPLY to Response to Motion re 149 MOTION for Permanent Injunction filed by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 05/17/2006)
158 REPLY to Response to Motion re 147 MOTION for Judgment as a Matter of Law Renewed, Remittitur, or in the Alternative for a New Trial filed by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 05/19/2006)
159 MOTION for Leave to File Surreply by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 05/19/2006)
Docket Text ORDER re 159 MOTION for Leave to File Surreply by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) filed by Equal Employment Opportunity Commission, Ahmet Yigit Demerelli; ORDERED GRANTED. IT IS HEREBY ORDERED that plaintiff and plaintiff-intervenor's motion for leave to file a surreply is GRANTED. IT IS FURTHER ORDERED that plaintiff and plaintiff-intervenor shall file their surreply no later than May 25, 2006. Signed by Judge Charles A. Shaw on May 22, 2006. (EMW) (Entered: 05/22/2006)
160 SURREPLY to Motion re 147 MOTION for Judgment as a Matter of Law Renewed, Remittitur, or in the Alternative for a New Trial filed by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara)[Filing of document was incomplete. Attorney notified of filing error. Attorney to refile the document appropriately. Document only deleted from this entry.] Modified on 5/23/2006 (MRC, ). (Entered: 05/22/2006)
161 SURREPLY to Motion re 147 MOTION for Judgment as a Matter of Law Renewed, Remittitur, or in the Alternative for a New Trial filed by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 05/23/2006)
162 MOTION for Extension of Time to File Response/Reply as to 146 MOTION for Attorney Fees and Additional Time, 145 MOTION for Bill of Costs by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 05/25/2006)
Docket Text ORDER re 162 MOTION for Extension of Time to File Response/Reply as to 146 MOTION for Attorney Fees and Additional Time, 145 MOTION for Bill of Costs by Defendant Convergys Customer Management Group, Inc.(Jordan, Laura) filed by Convergys Customer Management Group, Inc.; ORDERED GRANTED. IT IS HEREBY ORDERED that defendant's

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05/30/2006 06/02/2006 06/05/2006
06/05/2006 06/07/2006
06/13/2006 06/13/2006 07/07/2006

motion for additional time is GRANTED. IT IS FURTHER ORDERED that defendant shall file its response to plaintiff-intervenor's motion for attorney's fees no later than May 30, 2006. Signed by Judge Charles A. Shaw on May 26, 2006. (EMW) (Entered: 05/26/2006)
163 RESPONSE in Opposition re 146 MOTION for Attorney Fees and Additional Time filed by Defendant Convergys Customer Management Group, Inc.. (Attachments: # 1 Exhibit Part 1 of 3# 2 Exhibit Part 2 of 3# 3 Exhibit Part 3 of 3# 4 Exhibit 2# 5 Exhibit Exhibit 3)(Bonacorsi, Mary) (Entered: 05/30/2006)
164 MOTION to Amend/Correct 163 Response in Opposition to Motion, re Motion for Attorneys Fees by Defendant Convergys Customer Management Group, Inc.. (Jordan, Laura) (Entered: 06/02/2006)
165 REPLY to Response to Motion re 146 MOTION for Attorney Fees and Additional Time filed by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (Fagras, Michael) Modified on 6/6/2006 (MRC, ).[Document entered incorrectly into the record. Document is a "Motion". Attorney notified of filing error. Document copied and refiled appropriately by the Clerk. This document only deleted from the record] (Entered: 06/05/2006)
166 MOTION for Extension of An Additional Seven Days to Reply to Defendant's Memorandum in Opposition to An Award of Attorney's Fees. by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (MRC, ) (Entered: 06/06/2006)
Docket Text ORDER re 166 MOTION for Extension of An Additional Seven Days to Reply to Defendant's Memorandum in Opposition to An Award of Attorney's Fees by Intervenor Plaintiff Ahmet Yigit Demerelli, Plaintiff Equal Employment Opportunity Commission. (MRC) filed by Equal Employment Opportunity Commission, Ahmet Yigit Demerelli; ORDERED GRANTED. IT IS HEREBY ORDERED that plaintiff and plaintiff-intervenor's motion for an extension of time to file a reply in support of their motion for attorney's fees is GRANTED. IT IS FURTHER ORDERED that plaintiff and plaintiff-intervenor shall file their reply memorandum no later than June 13, 2006. Signed by Judge Charles A. Shaw on June 7, 2006. (EMW) (Entered: 06/07/2006)
167 REPLY to Response to Motion re 146 MOTION for Attorney Fees and Additional Time filed by Plaintiff Equal Employment Opportunity Commission. (Seely, Barbara) Additional attachment(s) added on 6/14/2006 (KXS, ). (Entered: 06/13/2006)
168 REPLY (to termed motion) re 146 MOTION for Attorney Fees and Additional Time filed by Intervenor Plaintiff Ahmet Yigit Demerelli. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Fagras, Michael) (Entered: 06/13/2006)
169 MEMORANDUM AND ORDER-... IT IS HEREBY ORDERED that defendant Convergys Customer Management Group's motion for judgment as a matter of law or alternative motion for new trial and remittitur is Denied. IT IS FURTHER ORDERED that plaintiff Equal Employment Commission's first motion for bill of costs is GRANTED in part and DENIED in part.IT IS FURTHER ORDERED

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07/07/2006

that plaintiff Equal Employment Opportunity Commission is awarded costs in the amount of $7,627.57. IT IS FURTHER ORDERED that plaintiff-intervenor Ahmet Demirelli's motion for bill of costs is GRANTED in part and DENIED in part, as set forth in this Memorandum and Order. IT IS FURTHER ORDERED that plaintiff-intervenor Ahmet Demirelli's is awarded costs in the amount of $113.00. IT IS FURTHER ORDERED that plaintiff-intervenor Ahmet Demirelli's motion for attorney's fees is GRANTED in part and DENIED in part, as set forth in this Memorandum and Order. IT IS FURTHER ORDERED that plaintiff-intevenor Ahmet Demirelli is awarded attorney's fees in the amount of $34,400.00. IT IS FURTHER ORDERED that plaintiff Equal Employment Opportunity Commission's motion for permanent injunction is GRANTED in part and DENIED in part.Said motion is granted to the extent that defendant shall provide plaintiff-intervenor Ahmet Demirelli with a neutral letter of reference, which shall be the only communication defendant gives in response to any inquiries about Mr. Demirelli as set forth in this Memorandum and Order. IT IS FURTHER ORDERED that plaintiff Equal Opportunity Commission's motion for entry of prejudgment interest is Granted. IT IS FURTHER ORDERED that plaintiff-intervenor Ahmet Demirelli is awarded $2,634.88 for prejudgment interest. IT IS FURTHER ORDERED that defendant Convergys Customer Management Group's motion to amend its response in opposition to plaintiff-intervenor's motion for attorney's fees is Granted. An amended judgment will accompany this memorandum and order.. Signed by Judge Charles A. Shaw on 7/7/2006. (MRC, ) (Entered: 07/07/2006)
170 AMENDED JUDGMENT...IT IS HEREBY ORDERED,ADJUDGED, AND DECREED that judgment is entered in favor of plaintiffs Equal Employment Opportunity Commission and AhmetDemirelli and against defendant Convergys Customer Management Group on the claim of disability discriminiation as submitted in instruction #12.IT IS FURTHER ORDERED,ADJUDGED,AND DECREED that judgment in entered in favor of plaintiffs Equal Opportunity Commission and Ahmet Demirelli and against defendant Convergys Customer Management Group on the claim that Convergys Customer Management Group failed to make a good faith effor to consult with plaintiff Ahmet Demirelli to identify and made reasonable accommodations as submitted in instruction #14.IT IS FURTHER ORDERED,ADJUDGED,AND DECREED that judgment is entered in the amount of $14,265.22 for lost wages and benefits through the date of the verdict, $100,000.00 for other damages up to April 4, 2003,excluding lost wages and benefits, total costs in the amount of $7,740.57,prejudgment interest in the amount of $2,634.88, and attorney's fees in the amount of $34,400.00 for a total judgment of $159,040.67 against defendant Convergys Customer Management Group.IT IS FURTHER ORDERED,ADJUDGED,AND DECREED that defendant Convergys Customer Management Group shall provide plaintiff-intervenor Ahmet Demirelli with a neutral reference letter for potential employers. The neutral reference letter shall contain the title of the last position plaintiff-intervenor held at Convergys and the dates he was employed there. The neutral reference letter shall be signed by a management official at defendant's Hazelwood facility. The contents of the neutral reference letter shall be the only communication given in response to any inquiries defendant receives regarding plaintiff-intervenor.. Signed by Judge Charles A. Shaw on 7/7/2006. (MRC, ) (Entered: 07/07/2006)

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07/10/2006 07/10/2006 07/13/2006 07/13/2006 07/17/2006
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171 Bill of Costs Taxed in amount of $7,627.57 against Convergys Customer Management Group, Inc. re: 142 First MOTION for Bill of Costs filed by Equal Employment Opportunity Commission. (MRC, ) (Entered: 07/07/2006)
172 ORDER:......IT IS HEREBY ORDERED that plaintiff-intervenor shall re-submit the bill of costs as originally filed in Document 145,Attachment 3 with an attorney's signature no later than Monday, July 10, 2006 at 5:00 pm.IT IS FURTHER ORDERED that if plaintiff-intervenor fails to re-submit the bill of costs as directed, the Court will vacate the portion of the judgment awarding costs to plaintiff-intervenor.. Signed by Judge Charles A. Shaw on 7/7/2006. (MRC, ) (Entered: 07/07/2006)
173 MOTION for Bill of Costs by Intervenor Plaintiff Ahmet Yigit Demerelli. (Attachments: # 1)(Fagras, Michael) (Entered: 07/10/2006)
174 Bill of Costs Taxed in amount of $ $113.00 against Convergys Customer Management Group, Inc. 173 MOTION for Bill of Costs filed by Ahmet Yigit Demerelli,. (MRC, ) (Entered: 07/10/2006)
Receipt # S2006-008963 in the amount of $455.00 for NOTICE OF APPEAL/DKT FEE, NOTICE OF APPEAL/DKT FEE-PART 2, NOTICE OF APPEAL/DKT FEE-PART 3 on behalf of THOMPSON COBURN. (CSW,) (Entered: 07/13/2006)
175 NOTICE OF APPEAL by Defendant Convergys Customer Management Group, Inc.. Filing fee $ 455, receipt number s2006-8963.(JWJ, ) (Entered: 07/14/2006)
176 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by clerk to USCA regarding 172 Scheduling Order,, 170 , 131 Jury Trial - Resumed but not Concluded,, 67 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,,, 68 Judgment (Partial), 175 Notice of Appeal, 133 Jury Instructions, 169 Memorandum & Order,,,,,,,,, 141 Judgment - (Case), and 130 Jury Trial - Resumed but not Concluded,. Notice of Appeal filed on 07/13/06 by Defendant Convergys Customer Management Group, Inc.. NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE. SUBMIT FORM A & B TO EIGHTH CIRCUIT CLERKS OFFICE(CDF) (Entered: 07/17/2006)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Mon Jul 17 17:49:38 CDT 2006 (CDF, ) (Entered: 07/17/2006)
177 TRANSCRIPT ORDER REQUEST by Convergys Customer Management Group, Inc. for proceedings of Trial for proceedings held on April 10, 2006 to April 14, 2006 court reporter Sue Moran before Judge Charles Shaw.. (Jordan, Laura) (Entered: 07/21/2006)
178 Initial Notification and or Briefing Schedule from USCA for 175 Notice of Appeal filed by Convergys Customer Management Group, Inc., USCA Appeal Number: 06-2874 Transcript due: 8/29/2006 Briefs due: Appellant w/addendum-9/8/2006; Appellee-10/10/2006;Reply Brief-10/23/2006 (MRC, ) (Entered: 07/25/2006)
179 ORIGINAL TRANSCRIPT (Pilot) proceedings of Jury Trial -- Vol I held on 4/10/06 before Judge Charles A. Shaw. Court Reporter: S. Moran. The transcript filed with the court will not be remotely available until such time as the period for

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redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, ) (Entered: 08/08/2006)
180 ORIGINAL TRANSCRIPT (Pilot) proceedings of Jury Trial -- Vol II held on 4/11/06 before Judge Charles A. Shaw. Court Reporter: S. Moran. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, ) (Entered: 08/08/2006)
181 ORIGINAL TRANSCRIPT (Pilot) proceedings of Jury Trial -- Vol III held on 4/12/06 before Judge Charles A. Shaw. Court Reporter: S. Moran. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, ) (Entered: 08/08/2006)
182 ORIGINAL TRANSCRIPT (Pilot) proceedings of Jury Trial -- Vol IV held on 4/13/06 before Judge Charles A. Shaw. Court Reporter: S. Moran. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, ) (Entered: 08/08/2006)
183 ORIGINAL TRANSCRIPT (Pilot) proceedings of Jury Trial -- Vol V held on 4/14/06 before Judge Charles A. Shaw. Court Reporter: S. Moran. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, ) (Entered: 08/08/2006)
184 ORIGINAL TRANSCRIPT (Pilot) proceedings of Pretrial Conference held on 4/6/06 before Judge Charles A. Shaw. Court Reporter: S. Moran. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, ) (Entered: 09/29/2006)
185 Appeal Transmittal re 175 Notice of Appeal: USCA Appeal #: 06-2874 The following has been forwarded to USCA: 1 vol pretrial conference and 5 vols of trial transcript(KCM, ) (Entered: 02/08/2007)
186 Appeal Remark USCA Appeal #: 06-2874 Transcripts received by USCA(KXS, ) (Entered: 02/16/2007)

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187 OPINION from USCA re 175 Notice of Appeal: USCA Appeal #: 06-2874 After a careful review of the record, the judgment of the district court is affirmed.(JWJ, ) (Entered: 07/06/2007)
188 ORDER of USCA Regarding: This appeal from the United States District Court was submitted on the record of the district court, briefs of the parties and was argued by counsel. After consideration, it is hereby ordered and adjudged that the judgment of the district court in this cause is affirmed in accordance with the opinion of this Court. USCA Appeal #: 06-2874 (JWJ, ) (Entered: 07/06/2007)
189 SATISFACTION OF JUDGMENT by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 08/17/2007)
190 MANDATE of USCA as to 175 Notice of Appeal filed by Convergys Customer Management Group, Inc., Decision of USCA:This appeal from the United States District Court was submitted on the record of the district court, briefs of the parties and was argued by counsel. After consideration, it is hereby ordered and adjudged that the judgment of the district court in this cause is affirmed in accordance with the opinion of this Court USCA #:06-2874(JWJ, ) (Entered: 08/31/2007)
191 ORDER of USCA as to 175 Notice of Appeal filed by Convergys Customer Management Group, Inc., USCA Appeal #: 06-2874. Appellee Equal Employment Opportunity Commission shall recover from the appellant the sum of Two Hundred Eighty-Nine Dollars and Eighty-Five Cents ($289.85) as taxable costs on appeal. The clerk of the United States District Court is directed to place these costs in the previously issued mandate. (NCL) (Entered: 09/05/2007)
192 SATISFACTION OF JUDGMENT by Ahmet Yigit Demerelli. (Fagras, Michael) (Entered: 09/17/2007)

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General Docket Eighth Circuit Court of Appeals

Court of Appeals Docket #: 06-2874 Nsuit: 1441 Voting EEOC v. Convergys Customer Appeal From: U.S. District Court for the Eastern District of Missouri - St. Louis

Case Type Information: 1) Civil 2) United States as a party 3) null

Originating Court Information: District: 0865-4 : 4:04-cv-00846-CAS Court Reporter: Sue Moran, Court Reporter Trial Judge: Charles A. Shaw, U.S. District Judge Date Filed: 07/08/2004 Date Order/Judgment: 07/07/2006

Date NOA Filed: 07/13/2006

Prior Cases: None

Current Cases: None

Logout Help Filed: 07/20/2006

Equal Employment Opportunity Commission Plaintiff - Appellee

Robert G. Johnson Direct: 314-539-7949 [COR LD NTC US Attorney] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce Room 8.100, Robert A. Young Federal Building St. Louis, MO 63103-0000
Barbara A. Seely Direct: 314-539-7949 [COR LD NTC US Attorney] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce Room 8.100, Robert A. Young Federal Building St. Louis, MO 63103-0000
Susan L.P. Starr Direct: 202-663-4727 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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Ahmet Yigit Demirelli Intervenor plaintiff - Appellee
v. Convergys Customer Management Group, INC.
Defendant - Appellant

1801 L Street, N.W. Suite 7038 Washington, DC 20507-0000
John F. Suhre Direct: 202-663-4716 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, DC 20507-0000
Michael J. Fagras Direct: 636-498-4000 [COR LD Retained] LAMPIN & KELL 4700 Mexico Road St. Peters, MO 63376-0000
Mary M. Bonacorsi [COR LD NTC Retained] THOMPSON & COBURN Firm: 314-552-6000 One US Bank Plaza St. Louis, MO 63101-1693
Erica L. Freeman Direct: 314-552-6000 [COR LD NTC Retained] THOMPSON & COBURN Firm: 314-552-6000 One US Bank Plaza St. Louis, MO 63101-1693
Laura M. Jordan Direct: 314-552-6000 [COR LD NTC Retained] THOMPSON & COBURN Firm: 314-552-6000 One US Bank Plaza St. Louis, MO 63101-1693

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; Plaintiff - Appellee
AHMET YIGIT DEMIRELLI Intervenor Plaintiff - Appellee
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CONVERGYS CUSTOMER MANAGEMENT GROUP, INC. Defendant - Appellant

07/20/2006 07/20/2006 07/20/2006 07/26/2006 07/26/2006 07/28/2006 07/31/2006 08/14/2006 08/15/2006 08/16/2006 09/26/2006 10/02/2006 10/02/2006 10/02/2006 10/02/2006 10/10/2006 10/10/2006 10/16/2006 10/20/2006 11/27/2006 11/27/2006

Civil Case Docketed. Dist. Ct. Office: St. Louis
CERTIFIED copies notice of appeal, docket entries, and orders dated 1/19/06, 4/12/06, 4/13/06, 4/14/06, 4/18/06, 7/7/06. [06-2874] [2069734]
BRIEFING SCHEDULE: [06-2874] Transcript due on 8/29/06 Apndx due on 9/8/06 Aplnt brief due on 9/8/06 Aplee brief due on 10/10/06 reply brief due on 10/23/06
APPEARANCE for appellant, attorney Mary M. Bonacorsi [06-2874] [2072149]
Corporate Disclosure Statement filed. Filed by Convergys Customer FOR CAL.
DESIGNATION of record received from Appellant Convergys Customer. Type of appendix: Separate [06-2874]
APPEARANCE for appellee, attorney John F. Suhre [06-2874] [2090722]
APPEARANCE for appellant, attorney Laura M. Jordan [06-2874] [2079353]
MOTION of aplnt, Convergys Customer, for extension of time to file brief until 10/9/06. [062874] [2078811] w/service 8/15/06
ORDER filed:granting in part appellant motion for extension of time to file brief [2078812] Aplnt brief now due on 9/29/06
MOTION of aplnt, Convergys Customer, for extension of time to file brief until 10/2/06 . [062874] [2095227] w/service 9/26/06
ORDER filed:granting appellant motion for extension of time to file brief [2095227-1] [2095228] Aplnt brief now due on 10/2/06 .
BRIEF FILED - Brief of Appellant- Convergys Customer - 10796 words - w/addendum 10 copies - w/service 10/2/06 (mail) - w/diskette. Defects: juris stmt. [06-2874] [2096669]
RECORDS received: Appendix filed by Appellant Convergys Customer consisting of 3 Copies. [06-2874]
RECORDS received: Appendix of Trial Exhibits (copy provided by aplnt's counsel) - one volume - Located in: St. Louis. [06-2874]
Brief Correction(s) received from Appellant Convergys Customer. Correction(s): Page ix. [062874]
APPEARANCE for appellee, attorney Susan L.P. Starr [06-2874] [2108407]
MOTION of aplee, EEOC , for extension of time to file brief until 12/4/06 . [06-2874] [2101547] w/service 10/16/06
ORDER filed:granting in part appellee motion extension of time to file brief [2101647] Aplee brief now due on 11/22/06
BRIEF FILED - Brief of Appellee - EEOC. 9403 words w/o addendum - 10 copies - w/service 11/22/06 . w/diskette [06-2874] [2117015]
RECORDS received: Appendix filed by Appellant Convergys Customer consisting of 1 Volume(s), 3 Copies. [06-2874]

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02/14/2007
03/08/2007 03/15/2007

MOTION of aplnt, Convergys Customer, for extension of time to file reply brief until 12/18/06 . [06-2874] [2117020] w/service 12/5/06
ORDER filed:granting appellant motion extension of time to file reply brief. [2117020-1] [2117021] Reply brief now due on 12/18/06 .
BRIEF FILED - APPELLANT REPLY BRIEF filed by Convergys Customer Management Group , w/service12/18/2006. 22 PDF pages No Addendum, 10 copies, Defects:None Words/lines/pages:4425 words. [3260990-1] [06-2874]
LETTER from Appellee Mr. Ahmet Yigit Demirelli notifying they will not be filing a brief in this case.. w/service 12/18/2006 [06-2874]
SET FOR ARGUMENT - CASE PLACED ON CALENDAR - for Argument in St. Louis on 03/15/2007. To be heard before Judges Michael J. Melloy, Lavenski R. Smith, Duane Benton, St Louis Division II. All attorneys presenting oral argument must complete a response form, which may be found at http://www.ca8.uscourts.gov/webcal/response/mar07stl.pdf For the complete calendar go to http://www.ca8.uscourts.gov/webcal/mar07stl.pdf Please review the entire calendar carefully, particularly the Counsel Notice page. [06-2874]
RECORD FILED - Record Part: TRIAL TRANSCRIPT, No. of Volumes: 5, Volumes Location: STL, Comments: vols. I, II, III, IV, and V, Source Location: U:SDC / EMSL, Dt. of Proceeding/Hearing: 04/10/2006, Court Reporter: Moran, Sue; Record Part: HEARING TRANSCRIPT, No. of Volumes: 1, Volumes Location: STL, Source Location: USDC / EMSL, Dt. of Proceeding/Hearing: 04/06/2006, No. of Pgs.: 62, Court Reporter: Moran, Sue [3278660] [06-2874]
APPEARANCE FILED by Attorney Mr. Robert G. Johnson for Appellee EEOC [3286374] [06-2874]
ARGUED & SUBMITTED in St. Louis to Judges Michael J. Melloy ; Lavenski R. Smith ; Duane Benton Ms. Laura M. Jordan for Appellant Convergys Customer Management Group and Mr. Robert G. Johnson for Appellee EEOC. Rebuttal by Mr. Robert G. Johnson for EEOC RECORDED [3288751] [06-2874]

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5/10/2007

 
 United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 06-2874 ___________

Equal Employment Opportunity

*

Commission,

*

*

Appellee,

*

*

Ahmet Yigit Demirelli,

*

*

Intervenor - Appellee, *

* Appeal from the United States

v.

* District Court for the

* Eastern District of Missouri.

Convergys Customer Management *

Group, Inc.,

*

*

Appellant.

*

___________

Submitted: March 15, 2007 Filed: July 6, 2007 ___________

Before MELLOY, SMITH, and BENTON, Circuit Judges. ___________

SMITH, Circuit Judge.

Plaintiff Equal Employment Opportunity Commission (EEOC) and plaintiffintervenor Ahmet Yigit Demirelli sought relief against Demirelli's former employer, Convergys Customer Management Group, Inc. ("Convergys"), alleging that Convergys failed to accommodate Demirelli's disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a). A jury found for the plaintiffs,

awarding Demirelli lost wages and compensatory damages. The district court1 denied Convergys's motions for judgment as a matter of law and for remittur. Convergys appeals. We affirm.
I. Background Convergys provides customer-service assistance on behalf of corporate clients. In January 2001, Convergys hired Demirelli as a call representative. Demirelli, confined to a wheelchair due to a rare condition commonly known as brittle bone disease, answered telephone calls from customers of Convergys's clients.
To keep its call stations consistently attended, Convergys maintains a strict tardy policy. Convergys penalizes employees who are more than three minutes late either reporting for work at the company's call center or returning from their 30minute lunch break. Employees with 14 or more violations in a single year could be disciplined. Potential sanctions range from a written warning to termination of employment.
For the first year of his employment, Demirelli often reported for work and returned from lunch late. Records show that Demirelli was late reporting for work 37 times and late returning from lunch 65 times—far in excess of Convergys's 14 tardy allowance. Demirelli's tardiness reporting to work stemmed from the lack of adequate handicapped parking at Convergys's call center. The call center's large parking area only had two van-accessible, handicapped parking spaces—spaces large enough for a special-needs van to operate a ramp or motorized lift. These two spaces were usually occupied when Demirelli arrived, thus causing him to either wait for the space to become unoccupied or find an alternative parking space.
1The Honorable Charles A. Shaw, United States District Judge for the Eastern District of Missouri.
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Demirelli made unsuccessful efforts to reduce his tardiness for work. Specifically, Demirelli tried arriving at work earlier—at one point arriving nearly an hour early— however, the two parking spots were still usually occupied. Demirelli then began parking at a nearby movie theater, but traveling via wheelchair from the theater's parking lot to the call center took over 10 minutes and caused Demirelli considerable physical pain. Finally, Demirelli requested different hours hoping that one of the two special-needs parking spaces might be available at a later hour. But even during a later work-shift, the two special-needs spots were still occasionally occupied.
Demirelli's condition and the layout of Convergys's call center hampered an ontime lunch return. Convergys's call center is a maze of hundreds of cubicles where individual call representatives answer customer calls. Cubicles are not assigned to specific call representatives; when call representatives report for work or return from lunch, they claim the first cubicle that they can find. Most employees simply look over the top of the rows of cubicles to find an available workstation. However, this option was not available to the wheelchair-confined Demirelli. He was forced to examine each workstation. This time-consuming exercise was exacerbated by narrow aisles, making it difficult for Demirelli to navigate obstacles such as stray chairs or chatting colleagues. His search was further complicated by the fact that not every workstation was fully operational; occasionally, a workstation would be available but missing a headset or other necessary equipment.
Initially, Demirelli's supervisor reserved a workstation for him. However, after a few months, Demirelli's supervisor was replaced. His new supervisor refused to reserve a workstation for him. A few months before his termination, Demirelli began seating himself at workstations reserved for training. His supervisors expressed their displeasure with him sitting there but did not require him to move. When his supervisors approached him to discuss his tardies, Demirelli explained that he was having problems finding a parking space and a workstation. He asked that he be given
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"a grace period"—a few extra minutes to return from lunch to work. Convergys denied this request. On June 27, 2002, Convergys terminated Demirelli's employment.
Demirelli filed a timely claim with the EEOC, which in turn brought this enforcement action pursuant to its authority under 42 U.S.C. §§ 2000e-5(f)(1) and (3). Demirelli intervened as a plaintiff pursuant to § 2000e-5(f)(1). The matter proceeded to trial, and a jury found for the plaintiffs, awarding Demirelli $14,265.22 in lost wages and $100,000 in other compensatory damages.
II. Discussion Convergys appeals the district court's denial of its motion for judgment as a matter of law, averring that it cannot be held liable for failure to accommodate Demirelli because he did not request a specific, reasonable accommodation. In the alternative, Convergys avers that Demirelli's proposed accommodations were unreasonable.2 Convergys also challenges the award and amount of compensatory damages.
A. Judgment as a Matter of Law We review de novo the denial of a motion for judgment as a matter of law. Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 (8th Cir. 2000). In order to prevail on a claim of discrimination under the ADA, Demirelli must prove, inter alia, that he was qualified to perform the essential functions of his job, with or without accommodation. Land v. Washington County, Minn., 243 F.3d 1093, 1095 (8th Cir.
2Convergys also argues, citing Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998) (en banc), that Demirelli, a Turkish immigrant, was an unauthorized immigrant worker and thus not entitled to relief under the ADA. The record is clear, however, that for the period that Demirelli claims damages, he was authorized by the Department of Homeland Security to work in the United States. We therefore reject Convergys's claims without deciding whether unauthorized workers are entitled to relief under the ADA.
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2001). Determination of whether a disabled employee is qualified to perform an essential function of the job is a two-fold inquiry, asking: (1) whether the employee meets the necessary prerequisites for the job, such as education, experience, and training and (2) whether the employee can perform the essential job functions, with or without reasonable accommodation. Id.
1. The Interactive Process Convergys avers that, as a matter of law, an employer cannot be held liable for failing to accommodate a disabled employee who has not requested a specific, reasonable accommodation. Similarly, Convergys avers that the district court erred when it declined to instruct the jury that Demirelli was required to request a specific accommodation. We hold that the district court did not err.
Our case law has established a shared responsibility between employers and employees to resolve accommodation requests. A disabled employee must initiate the accommodation-seeking process by making his employer aware of the need for an accommodation. Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 726 (8th Cir. 1999). Additionally, the employee must provide relevant details of his disability and, if not obvious, the reason that his disability requires an accommodation. Miller v. Nat'l Cas. Co., 61 F.3d 627, 630 (8th Cir. 1995).
Once the employer is made aware of the legitimate need for an accommodation, the employer must "make a reasonable effort to determine the appropriate accommodation." Cannice, 189 F.3d at 727 (internal citation and quotation omitted). "This means that the employer should first analyze the relevant job and the specific limitations imposed by the disability and then, in consultation with the individual, identify potential effective accommodations." Id; see also Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 954 (8th Cir. 1999) (stating that employers are required to "make a good faith effort to seek accommodations"). This division of responsibility is "only logical, as an employee will typically have better access to information
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concerning his limitations and abilities whereas an employer will typically have better access to information regarding possible alternative duties or positions available to the disabled employee." Rizzo v. Children's World Learning Ctr., Inc., 173 F.3d 254, 266 (5th Cir. 1999).
Demirelli testified at trial that he requested an accommodation because of limitations created by his wheelchair, thus meeting his initial burden. The record does not show, however, that Convergys fulfilled its obligation to explore possible accommodations for Demirelli's disability. In fact, the record evidence shows that Demirelli assumed Convergys's responsibility by offering several potential accommodations, including a few extra minutes to return from lunch. Demirelli thus exceeded what disabled employees at the initial stage of the interactive process must do. Convergys's argument thus attempts to place the entire responsibility of fashioning an accommodation upon Demirelli.
Convergys points to Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040 (8th Cir. 2005), to support its proposition that a disabled employee must request a specific reasonable accommodation. In that case, Kratzer, a disabled employee, needed to prove her proficiency with four-different types of machines in order to receive a promotion. Id. at 1044. However, her disability prevented her from sitting in front of the machines for the full amount of time necessary to demonstrate her proficiency. Id. Both Kratzer and her employer started the interactive process to find a reasonable accommodation that would allow Kratzer to use the machines and demonstrate her proficiency. Id. at 1045. As a part of this interactive process, Kratzer agreed to undergo a medical evaluation that would provide her employer with information necessary to fashion a proper accommodation. Id. However, Kratzer did not provide the necessary medical information. Id. After being denied the promotion, Kratzer sued, alleging that her employer failed to accommodate her disability. We held that Kratzer failed to fulfill her responsibility in the interactive process when she failed to provide information necessary for her employer to fashion an appropriate
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accommodation. Id. ("The breakdown in the interactive process was due to her failure to provide an updated evaluation, not Rockwell's refusal to provide an accommodation."). In the present case, there is no dispute that Demirelli provided Convergys with all of the information relevant to his disability and the disability's affect on his job performance.
We hold that Demirelli was not required to more specifically request accommodation. Accordingly, the district court did not err by denying Convergys's motion for judgment as a matter of law. Similarly, the district court did not err by declining to instruct the jury that Demirelli was required to request a specific accommodation.
2. Reasonable Accommodation Convergys avers that any accommodation that provided Demirelli with extra time was unreasonable because it required Convergys to eliminate the essential punctuality requirement. We disagree. There is no precise test for what constitutes a reasonable accommodation, but an accommodation is unreasonable if it requires the employer to eliminate an essential function of the job. Buckles v. First Data Res., Inc., 176 F.3d 1098, 1102 (8th Cir. 1999); Dropinski v. Douglas County, Neb., 298 F.3d 704, 709 (8th Cir. 2002). Whether an accommodation is reasonable is a question of fact to be decided by a jury. Fjellestad, 188 F.3d at 957; Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 896 (7th Cir. 1996).
The district court determined that punctuality is an essential job function. In order to fulfil this essential job function, the record evidence is clear that Demirelli requested an extra 15 minutes to return from his lunch break.3 Viewing the evidence
3Although an assigned parking place and workspace are other potential accommodations, the parties, at trial and oral argument, relied upon Demirelli's request for extra time as the reasonable accommodation that Convergys should have provided. Therefore, it is the only accommodation that we consider.
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in a light most favorable to the jury verdict, we believe that an extra 15 minutes is a reasonable accommodation. First, Convergys puts forth no evidence showing that extending Demirelli's lunch break by 15 minutes would eliminate its punctuality requirement. An additional 15 minutes would merely create a different time for Demirelli to return from his lunch break. Contrary to Convergys's assertion, this modified work schedule would not create an open-ended schedule where Demirelli would be free to return from lunch at his pleasure or at unpredictable times. Second, the record evidence also shows that by granting Demirelli an extra 15 minutes, 62 of Demirelli's 65 lunch tardies would have been eliminated. Lastly, the ADA itself recognizes extra time as a reasonable accommodation. "[R]easonable accommodation may include . . . job restructuring; part-time or modified work schedules." 42 U.S.C. § 12111(9)(B) (emphasis added); see also 29 C.F.R. § 1630.2.
Accordingly, we believe that there is sufficient evidence to support the jury's conclusion that the accommodations proposed by Demirelli were reasonable.
B. Damages Convergys avers that the district court erred by permitting the jury to award Demirelli $100,000 in compensatory damages and erred by denying its motion for remittur.
1. Compensatory Damages A plaintiff may seek compensatory damages under the ADA for emotional distress. Foster v. Time Warner Entm't Co., 250 F.3d 1189, 1196 (8th Cir. 2001) (internal citations and quotations omitted). While compensatory damages for emotional distress must be supported by competent evidence of genuine injury, a jury may award such damages based solely upon a plaintiff's testimony. Moysis v. DTG Datanet, 278 F.3d 819, 828 (8th Cir. 2002); Hammond v. Northland Counseling Ctr., Inc., 218 F.3d 886, 893 (8th Cir. 2000). However, an employer can avoid paying compensatory damages if the employer shows that it acted in good faith, working "in
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consultation with the person with the disability who has informed the [employer] that accommodation is needed, to identify and make a reasonable accommodation . . . ." 42 U.S.C. § 1981a(a)(3).
The record evidence shows that Demirelli suffered significant emotional injuries as a result of his wrongful termination. Demirelli testified that the termination caused him severe depression and anxiety. That, as a result of the depression, he became isolated, ashamed, and gained a significant amount of weight. Convergys does not dispute this evidence but merely argues that it acted in good faith.
Whether Convergys acted in good faith is a question for the jury in which Convergys bears the burden of proof. Landrum v. Moats, 576 F.2d 1320, 1329 (8th Cir. 1978). "[T]he failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith." Fjellestad, 188 F.3d at 952. As we have already concluded that Convergys failed to engage in the interactive process, we also conclude that a reasonable jury could find that Convergys did not act in good faith to make a reasonable accommodation. Prudent management decisions and common courtesy among co-workers may well have avoided this claim in its entirety but it cannot now be avoided by factual assertions reasonably resolved to the contrary by the jury.
2. Remittur We review the denial of remittur for abuse of discretion and "will grant a remittur only in cases where the jury's award is so grossly excessive as to shock the court's conscience." Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 496 (8th Cir. 2002) (internal quotation and citation omitted). "Our scope of review over a damage award is extremely narrow." Peoples Bank and Trust Co. of Mountain Home v. Globe Intern. Pub., Inc., 978 F.2d 1065, 1070 (8th Cir. 1992). "We review this award with
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a keen sense of respect for the latitude given to juries." Kucia v. Southeast Ark. Comm. Action Corp., 284 F.3d 944, 948 (8th Cir. 2002).
We vest with the jury the responsibility of quantifying emotional damages because the jury has the "benefit of observation of plaintiff in considering and determining a fair allowance for her emotional distress and humiliation." Block v. R.H. Macy & Co., Inc., 712 F.2d 1241, 1245 (8th Cir. 1983). "[I]t is well settled that awards for pain and suffering are highly subjective and should be committed to the sound discretion of the jury, especially when the jury is being asked to determine injuries not easily calculated in economic terms." Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1193 (8th Cir. 2000).
Convergys offers no convincing evidence that the jury's award of $100,000 for emotional damages shocks the conscience. Based upon the record evidence, we cannot say that the district court abused its discretion by denying Convergys's motion for a remittur.
III. Conclusion After a careful review of the record, the judgment of the district court is affirmed.
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