IN THE UNITED STATES DISTRICT CO URT FOR THE DISTRICT OF MARYLA ND

EQUAL EMPLOYMENT OPPORTUN ITY )

COMMISSION,

)

Ci ty Crescent Buil ding. 3" ~l00 r

)

10 So uth Ho"ud S" ••'

)

8 al,i01''''. MD HlOI

)

)

Plaintiff,

)

)

)

)

DENNY'S, INC.,

)

103 East M ain Sir.."

)

Spart.Dbu'i. SC 29319

)

)

Defendant.

)

)

Case No.
COMPLAINT AND JURY TRIAL DEMAND

NATURE OF THE ACTION

This is an actioll under Title I of the Americans With Disabilities Act of 1990, as amended

("ADA "), and Title I of the Civil Rights Act of 1991 to correct un lawful emplO)'Tllenl practices

because of disabilily and 10 provide appropriale relief to Charging Party Paula Han and a class of

present ly unidentified aggrieved persons with disabili ti es who were adversely affected by such

praclices. As alleged with grealer panicularity in paragraphs 9-13, below, Ihe U.s. Equal

Emplo)'Tllenl Oppol1Unily Commission ("the Comm ission" or " EEOC') alleges that Defendant

Denny's, III(:. ("Defendant") committed disabili ty discrimination in violation of the ADA by

discharging Paula Hart because of her disability and by denying her reasonable accommodation. As

alleged with grcatcrpanicularily in paragraph 14. below, the Commission further alleges that since

31 least September 2000, Defendant has committed disabi lity discrimination in violalion oflhe ADA

by discharging a class ofprescntly unidentified aggriel'ed employees with disabili ti es because of

their disabilities and by denying those employees reasonable accommodation. llJRISPlCUON AND VEl\'UE
I. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 133 1. 1337. 1343 and 1345. This action is authorized and instituted pursuant to Section I07(a)ofthe Americans with Disabilities Act of 1990 (~ADA"), 42 U.S.c. § 12117(a), which incorporates by reference Sections 706(f)(1) & (3) and 707 o fTitle VII of the Civil Rights Act of 1964, as amended, 42 U.S.c. §§ 2000c-5(f}(l) & (3) and 2000c-6; and Section 102 of the Civil Rights Act of 1991. 42 U.S.c. § 1981a.
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of Maryland, Northern Division, and other jurisdictions.
PARTIES 3. Plaintiff, the United States Equal Emp loyment Opportunity Commission (the '·Commission"), is the Ageocy of the United States of America charged with the admin istration, interpretation and enfon::ement ofTitle Iorthe ADA and is expressly authorized to bring this action by Section 107(a) o f the ADA. 42 U.S.c. § 121 17(a). which incorporates by re ference Sections
706(f}(l)& (3) and 707 ofTitlc VII, 42 U.s.C. §§ 2000e-5(f}(l) & (3) and 2()()()e-(i.
4. At all relevant times, Defendant Denny's, Inc., a California corporation, has contin uously been doing business in the State of Maryland and Ihe County ofBa\timon:, as well as other jurisdictions, and has continuously had at least 15 employees.
S. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within Ihe meaning of Section 101(5) of Ihe ADA. 42 U.S.c.§
2

121 I 1(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) ofTitle VII. 42 U.S.c. §§ 2000e(g) and (h).
6. At all relevant times, Defendant has been a covered entity within the meaning of 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. Paula Hart filed a charge ofdiscrimination with the Commission alleging violations ofthe ADA by Defendant. All conditions precedent to the mstitution of this lawsuit have been fulfilled.
8. Since at least September 2000, Defendant has engaged in a continuing course of unlawful employment practices at its facilities in Maryland and throughout the United States in violation of Sections 102(a), (b)(I), & (b)(5)(A) of the ADA. 42 U.S.c. §§ 12112(a), (b)(I), & (b)(5XA).
9. Since December 2002. Paula Hart has been a qualified individual with a disability within the meaning ofSection 10\(8) of the ADA, 42 U. S.c. § 1211\(8). Since that time, Ms. Hart has had a physical impairment/anatomical loss that has eaused her to be substantially limited in perfOlmmg major life activities, including but not limited to walking.
10. On or about April 16,2003. Defendant denied Paula Hart reasonable
accommodations in the form of return to work with the rl:asonable accommodations of temporary modified work schedule. modified job duties, usc of assistive devices for ambulation and performance of essential job functions. andlor reassignment to a vacant position in violation of the ADA.
II. On orabout April 16. 2003, Defendant refused to permit Paula Hart to return to work
3

because of her disability in violation oftbe ADA. 12. On or about May8, 2003, Defendant denied Paula Hart reasonabl e accommodations
in the form of return to worl;: witb tbe reasonable accommodations of temporary modified worl;: schedule, modified job duties. use of assistivc devices for ambulation and performance of essential job functions, reassignment to a vacam position, andlor additional unpaid medical leave in violation ofthe ADA.
13. On or about May 8, 2003, Defendant discbarged Paula Hart because ofher disability in violation of the ADA.
14. Since at least September 2000, Defendam bas maintained a policy and practice of limiting employee medical leaves (wbetber continuous or intermillentlreduced) to no morc tban a maximum of 26 weeks, and in some cases 12 weeks, regardless of wbetber those employees are disabled within the meaning of the ADA and fC<juire additional mediealleave, in any combination of paid or unpaid, as a form of reasonabl e accommodation. Through this policy or practice, Defendant has subjccted a class of presently unidentified qualified individuals with disabilities to denial of reasonable accommodation and discharge because of disability in violation of the ADA.
I S. The effect oftbe practices complained of in paragrapbs 8-14, abo"e, bas been to deprive Paula Han and a class of presently unidentified qualified individuals with disabilities of equal employment opportunities and otherwise adversely affcct tbelr status as employees because of their disabilities.
16. The unlawful employment practices complained of in paragraphs 8-14, above, were intentional.
17. Tbe unlawful employment practices complained of in paragrapbs 8·14, above. were
4

done with malice or with reckless indifferencc to the federally protected rights of Paula Hart and a class of presently Wlidentified quali tied individuals with disabilities.
PRAYER FOR RELIEF When:fore, the Commission respectfully requests that this Coun: A. Grant a permanent injunction enjoi ning Defendant, its officers. successors, assigns, and all persons in lICtiveconcen or participation with it, from engaging in disability discrimination, including discharge because of disability and denial of rl:3Sonable accommodation , and any otber employment practice which discriminates on the basis of disability. B. Order Defendant to institute and carry out policies. practices, and programs whicb provide equal employment opponunities for disabled employees and applicants, and which eradicate the effects of its past and present unlawful emplo)'Tflent practices, including but not limited to requiring that Defendant (i) amend its maximum medical lea\'e and maximum interminent medical leave policy to state that the Defendant shall make e~ceptions to the policy and provide additional medical leave beyond the max imum otherwise allowed under that po licy when required by the ADA as a reasonable accommodation for employees with disabilities; (ii) publicize that amendment to all present and future employees; (iii) adhere to the amendment; and (iv) notify all former employees discharged under the aforementioned policy before it was amended ofthis action, its disposition . and the amendment.
C. Order Defendant to pay Paula Han appropriate back pay in amounts to be determined
at trial, prej udgment mterest, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices.
D. Order Defendant \0 pay the class ofpresently unidentified aggri eved employees with
5

disabilities appropriate back pay in amounts to be detennined at trial, prejudgment interest, and other affirmative relief necessary to eradicate the effects of its unlawful employment practiees, including reinstatement or front pay in lieu thereof.
E. Order Defendant to make whole Paula Hart and the class of presently unidClttified aggrieved employees with disabilities by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 8-14, above, in amounts to be dctennined at trial.
F. Order Defcndantto make whole Paula Han and the class of presently unidentified aggrieved employees with disabilities by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in paragraphs 8-14, abovc, including emotional pain, suffering, inconvenience, mental anguish, loss ofenjoyment of life, and other nonpecuniary losses, in amounts to be determined at trial.
G. Order Defendant to pay Paula Han and the class of presently unidentified aggrieved employees with disabilities punitive damages for the malicious and reckless conduct described in paragraphs 8-14, abo,'c. in amounts to bc determined at trial.
H. Grant such further relief as the Court deems necessary and proper in the public interest.
L Award the Commission il5 cOSts of this action. JURY TRIAL DEMAt:.'P
Thc Commission requests ajury trial on all questions of fact raised by its complain\. Respectfully submiucd,
6

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
RONALD S, COOPER General Counsel
JAMES LEE Deputy General Counsel
GWEt-'DOL YN YOUNG REAMS Associate General Counsel

Regional Attorney EEOC-Philadelphia District Office (including Baltimore Field Office) Cily Crescent Building, 3«1 Floor 10 S. Howard SI. Baltimore, MD 21201 o Ie 21 440-2666
15) 440-1600

DEB M,

0.04312)

Supervi50ry Trial Atlomey

EEOC-Baltimore Field Office

City Crescent Building, 3«1 Floor

10 South Howard Slreet

Baltimore, Maryland 21201

Telephone number: (410) 962-4349

~im~umD)!2-4170~8\7

RONALD L. PHILLIPS Senior Trial Allomey EEOC-Baltimore Field Office City Crescent Building, 3.d Floor 10 South Howard Street Baltimore, MD 21201 Office #: (410) 961-4628 Facsimile 1#: (4\0) 962-42700817

7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
NORTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
DENNY'S, INC., Defendant.

CIVIL ACTION 1:06-cv-02527-AMD

STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIALITY
THIS CAUSE came before the Court on the parties' joint motion for the entry of a protective order. Upon consideration of the joint motion, IT IS HEREBY ORDERED AS FOLLOWS: I. DOCUMENTS AND INFORMATION RELATING TO DEFENDANT'S
FORMER AND CURRENT EMPLOYEES: A For purposes of this Order, "Litigation" means the litigation between the Equal Employment Opportunity Commission and Denny's, Inc., encaptioned Equal Employment Opportunity Commission v. Denny's, Inc., Civil Action 1:06-cv-02527AMD. B. For purposes of this Order, "Discovery Material" means all documents, data, deposition testimony and transcripts, deposition exhibits, responses to any discovery requests, including responses to interrogatories, document requests, subpoenas duces tecum, and requests for admission, inspections, examinations of premises, facilities and physical evidence, and any other information or material produced pursuant to the Federal Rules of Civil Procedure or otherwise given or exchanged by or among the

parties and non-parties to this action and includes all copies of such documents or other materials, in hard copy, electronic form, or any other form or format.
C. The "Confidential" designation is intended to be applied as specified herein to Discovery Material that contains non-public, confidential personnel and medical information that is treated by the parties as confidential information, including but not limited to employees' and former employees' contact information, social security numbers, personnel information, medical and benefits information, financial, tax, or other commercial and/or personnel information that the designating party in good faith believes requires the protections of this Order. However, the "Confidential" designation and this Order shall not be construed to include, as Confidential Discovery Material, at least the following documents and information: (a) documents or information related to Defendant's equal employment opportunity, ADA, reasonable accommodation, medical leave and other policies and procedures, and (b) documents or information regarding charges of discrimination, lawsuits, reports, complaints or other claims on public record regarding alleged disability discrimination.
D. Other than as permitted by this Order, no person other than the parties and their representatives may review, examine, or make copies of such documents or be given access to such information without the written consent of the opposing or producing party, and no one properly in possession of such documents or information may reveal the contents of the same or exhibit any document or any portion of any document to anyone other than those permitted by this Order. To obtain written consent for the disclosure of anything designated as "Confidential" to any person not specified in this Order, such party must first present a written request to opposing counsel seeking the release of the document, material, or information from the terms of this protective Order and thereafter, the party receiving such request shall have ten (10) days from receipt thereof to respond to said request. If the parties do not reach an agreement, then the requesting party may move this Court for relief from this Order.
- 2-

E. Any Discovery Material claimed to be "Confidential" prior to production may be clearly marked by the producing party as such, or designated as such if material is imaged or provided on electronic disc format. In the case of a thing, the legend "Confidential" shall be securely affixed in a prominent location. With regard to marking documents with the appropriate confidentiality classification, each page of the document that contains confidential information shall be so marked in a prominent location. Copies, extracts, summaries, notes, and other derivatives of "Confidential" Discovery Material shall also be deemed "Confidential" and shall be subject to the provisions of this Order. Notwithstanding the foregoing, the parties may also designate Discovery Material as "Confidential" by providing to the opposing party, in writing, a description of the Bates numbers or range of documents to be so designated, even if not marked with the confidentiality classification.
F. Any party objecting to the designation of any particular Discovery Material as "Confidential" or believing that any such designation is not made in good faith (collectively referred to as "objections") shall attempt to resolve the matter by setting forth in writing to the other party the objections and reason(s) therefore. The other party shall then, within seven days of receiving objections, set forth in writing a response to the objections and reasons believed to support the designation. Any objections that counsel are unable to resolve within fourteen (14) days ofthe receipt of the objection may be raised with the Court by the party challenging confidentiality. The burden of demonstrating the appropriateness of designating Discovery Material as "Confidential" shall be upon the party making the designation. Pending the determination by the Court, the Discovery Material shall retain its protected status.
G. Discovery Material designated "Confidential", copies thereof, and any confidential information contained therein shall not be disclosed to any person except:
(1) the Court and its officers;
-3-

(2) court reporters, videographers, and interpreters engaged in this Litigation;
(3) counsel of record in this Litigation and personnel of counsels' respective law firms or government agency, including but not limited to other counsel, paralegals, legal assistants, litigation support services, other employees, and outside copy services utilized by each firm or government agency;
(4) independent consultants or non-party experts retained by a party or counsel to a party to assist counsel in the preparation and trial of this Litigation. Any party so retaining such a consultant or expert shall have such consultant or expert execute the Agreement attached to this Order and shall keep a copy of such Agreement on file;
(5) persons regarding whom the Discovery Material pertains;
(6) persons who in good faith a party believes authored the Discovery Material or already have knowledge of its contents;
(7) persons who are testifying at a hearing, deposition or trial in this action; and
(8) persons to whom disclosure is required by federal law. H. So long as this Order is enforced as to any Discovery Material, or portion thereof designated "Confidential," no use shall be made of the Discovery Material, any copies thereof, or the contents of such Discovery Material or copies, by persons authorized pursuant to this Order, except for the purposes of this Litigation. Notwithstanding anything to the contrary hereinabove, nothing in this Order shall restrict a party's or third party's ability to use or disclose its own documents or proprietary information. In addition, notwithstanding any other provision in this Order, EEOC shall not be restricted in its ability to use or disclose Discovery Material designated as "Confidential" by Defendant but that pertains to EEOC's claimants in this case. I. Discovery Material designated as "Confidential" pursuant to this Order may only be reviewed by or disclosed or otherwise revealed to those persons specified in
- 4-

this Order, respectively. Moreover, the information contained in such Discovery Material

cannot be revealed to any person not specified in this Order.

J.

The restrictions and obligations regarding Discovery Material designated

as "Confidential" shall apply only to documents and information produced in this

Litigation. In addition, the restrictions and obligations regarding Discovery Material

designated as "Confidential" shall not apply to Discovery Material that is already public

knowledge at the time of production or that becomes public knowledge subsequent to

production unless it becomes public knowledge because of a violation of this Order.

Moreover, if a party files with the Court any Discovery Material that it previously

designated as "Confidential" and such filing is not made under seal, such Discovery

Material shall no longer be considered "Confidential" within the meaning of this Order,

as it will be a matter of public record.

II. CONCLUSION OF LITIGATION:

After the conclusion of this litigation, this Order shall continue to remain in full

force and effect, and the Court shall retain jurisdiction to enforce its provisions.

III. EXCEPTIONS TO PROTECTIVE ORDER:

There are no exceptions except as may be provided by Order of the Court

following notice to all the parties, pursuant to the procedure as outlined above. This

Order shall be without prejudice to the right of any party to bring to the Court at any time

the question of whether any particular document or information is "Confidential" or

whether its use should be restricted.

Notwithstanding the foregoing, any party may at any time remove its previous

"Confidential" designation regarding any Discovery Material.

IV. FILING OF CONFIDENTIAL INFORMATION UNDER SEAL:

All Discovery Material designated as "Confidential" that is filed with the Court,

and all pleadings, motions, or other papers filed with the Court that contain or disclose

such Discovery Material, shall be filed in accordance with the procedures set forth in the

-5-

Local Rules and CM/ECF procedures of this Court for filing of documents under seal, including the filing of a Motion to Seal. Given that in this circumstance the Motion to Seal will be filed by the non-designating party, it need only reference this Order and need not set forth the reasons for sealing, as the burden of demonstrating the propriety of sealing shall be upon the designating party. Thereafter, within the time frame permitted under the Local Rules of this Court for filing a Response to the Motion to Seal, the designating party shall file a pleading specifically identifying the Discovery Material that it will consent to have filed not under seal (if any), the Discovery Material it believes should remain "Confidential" and be filed under seal (if any), and the reasons why the latter Discovery Material should be filed under seal. Such pleading shall apply controlling law regarding the First Amendment and common law rights of access to judicial records. Thereafter, within the time frame permitted under the Local Rules of this Court for filing a Reply regarding the Motion to Seal, the non-designating party shall file a pleading identifying which Discovery Material (if any) that the designating party seeks to have filed under seal but that the non-designating party believes should not be filed under seal and the reasons why that Discovery Material should not be filed under seal (again, applying controlling law regarding the First Amendment and common law rights of access to judicial records). V. MISCELLANEOUS
This Order shall not govern use of "Confidential" Discovery Material regarding any hearing or trial in this action.
This Order, being an order of the Court, is enforceable by all lawful and appropriate means. However, neither this Order nor any provision thereof shall be construed to create or give rise to any claim or cause of action against the parties, their counsel, or any employees of the parties or counsel.
So ORDERED this1_2 day of _J_ une_ _ _ _ _, 2007.
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Agreed to by:

/s/ Honorable Andre M. Davis United States District Judge

EQUAL EMPLOYMENT OPPORTUNITY FORD & HARRISON LLP COMMISSION

By: /s/ Debra M. Lawrence (Bar No. 04312) Supervisory Trial Attorney EEOC-Baltimore Field Office City Crescent Building, 3rd Floor 10 South Howard Street Baltimore, MD 21201 (410) 209-2734 Telephone (41 0) 962-4270/2817 Facsimile

By: /s/ Peter J. Petesch Peter J. Petesch (Bar No. 12908) Jeffrey J. Sun (Bar No. 16599) 1300 19th Street, N.W. Suite 700 Washington, D.C. 20036 (202) 719-2000 Telephone (202) 719-2077 Facsimile

/s/ Ronald L. Phillips Senior Trial Attorney EEOC-Baltimore Field Office City Crescent Building, 3rd Floor 10 South Howard Street Baltimore, MD 21201 (410) 209-2737 Telephone (41 0) 962-4270/2817 Facsimile

Counsel for Defendant DENNY'S, INC.

Counsel for Plaintiff

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AGREEMENT I, _ _ _ _ _ _ _ _ ______, declare under penalty of perjury that the following is true and correct: I reside at _ _ _ _ _ _ _ _ _ _ in the City of _ _ _ _ _ _ _ _ and State of _______; I have read the Stipulated Protective Order concerning Confidential Information entered on ______ (the "Protective Order"); I am (state relationship to litigation) ________ regarding the litigation between the Equal Employment Opportunity Commission on the one hand and Denny's, Inc. on the other, the same being Civil Action No. 1:06-cv-02527-AMD in the United States District Court for Maryland; that I am fully familiar with and agree to comply with and be bound by the provisions of said Protective Order; and that I will not divulge to persons other than those specifically authorized by said Protective Order, and will not copy or use except solely for the purposes of this litigation, any information constituting Confidential Information under the Protective Order except as provided therein. Dated:
--------
Signature
DC:66579.1

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
NORTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
DENNY'S, INC., Defendant.

CIVIL ACTION 1:06-cv-02527-AMD

AMENDED STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIALITY
THIS CAUSE came before the Court on the parties' joint motion for the entry of an amended protective order. Upon consideration of the joint motion, IT IS HEREBY ORDERED AS FOLLOWS: I. DOCUMENTS AND INFORMATION RELATING TO DEFENDANT'S
FORMER AND CURRENT EMPLOYEES: A For purposes of this Order, "Litigation" means the litigation between the Equal Employment Opportunity Commission and Denny's, Inc., encaptioned Equal Employment Opportunity Commission v. Denny's, Inc., Civil Action 1:06-cv-02527AMD. B. For purposes of this Order, "Discovery Material" means all documents, data, deposition testimony and transcripts, deposition exhibits, responses to any discovery requests, including responses to interrogatories, document requests, subpoenas duces tecum, and requests for admission, inspections, examinations of premises, facilities and physical evidence, and any other information or material produced pursuant to the Federal Rules of Civil Procedure or otherwise given or exchanged by or among the

DC:69413.1

parties and non-parties to this action and includes all copies of such documents or other

materials, in hard copy, electronic form, or any other form or format.

C. The "Confidential" designation is intended to be applied as specified herein to Discovery Material that contains non-public, confidential personnel and medical

information that is treated by the parties as confidential information, including but not limited to employees' and former employees' contact information, social security

numbers, personnel information, medical and benefits information, financial, tax, any and

all settlement and other documents produced by Paula Hart as required by the Letter Order of October 31, 2007 (Paper No. 26) in this action, or any other commercial and/or

personnel information that the designating party in good faith believes requires the protections ofthis Order. However, the "Confidential" designation and this Order shall

not be construed to include, as Confidential Discovery Material, at least the following documents and information: (a) documents or information related to Defendant's equal employment opportunity, ADA, reasonable accommodation, medical leave and other

policies and procedures, and (b) documents or information regarding charges of discrimination, lawsuits, reports, complaints or other claims on public record regarding

alleged disability discrimination. D. Other than as permitted by this Order, no person other than the parties and
their representatives may review, examine, or make copies of such documents or be given

access to such information without the written consent of the opposing or producing party, and no one properly in possession of such documents or information may reveal

the contents of the same or exhibit any document or any portion of any document to anyone other than those permitted by this Order. To obtain written consent for the disclosure of anything designated as "Confidential" to any person not specified in this

Order, such party must first present a written request to opposing counsel seeking the release of the document, material, or information from the terms of this protective Order

and thereafter, the party receiving such request shall have ten (10) days from receipt

DC:69413.1

- 2-

thereof to respond to said request. If the parties do not reach an agreement, then the requesting party may move this Court for relief from this Order.
E. Any Discovery Material claimed to be "Confidential" prior to production may be clearly marked by the producing party as such, or designated as such if material is imaged or provided on electronic disc format. In the case of a thing, the legend "Confidential" shall be securely affixed in a prominent location. With regard to marking documents with the appropriate confidentiality classification, each page of the document that contains confidential information shall be so marked in a prominent location. Copies, extracts, summaries, notes, and other derivatives of "Confidential" Discovery Material shall also be deemed "Confidential" and shall be subject to the provisions of this Order. Notwithstanding the foregoing, the parties may also designate Discovery Material as "Confidential" by providing to the opposing party, in writing, a description of the Bates numbers or range of documents to be so designated, even if not marked with the confidentiality classification.
F. Any party objecting to the designation of any particular Discovery Material as "Confidential" or believing that any such designation is not made in good faith (collectively referred to as "objections") shall attempt to resolve the matter by setting forth in writing to the other party the objections and reason(s) therefore. The other party shall then, within seven days of receiving objections, set forth in writing a response to the objections and reasons believed to support the designation. Any objections that counsel are unable to resolve within fourteen (14) days ofthe receipt of the objection may be raised with the Court by the party challenging confidentiality. The burden of demonstrating the appropriateness of designating Discovery Material as "Confidential" shall be upon the party making the designation. Pending the determination by the Court, the Discovery Material shall retain its protected status.
G. Discovery Material designated "Confidential," copies thereof, and any confidential information contained therein shall not be disclosed to any person except:

DC:69413.1

-3 -

(1) the Court and its officers;
(2) court reporters, videographers, and interpreters engaged in this Litigation;
(3) counsel of record in this Litigation and personnel of counsels' respective law firms or government agency, including but not limited to other counsel, paralegals, legal assistants, litigation support services, other employees, and outside copy services utilized by each firm or government agency;
(4) independent consultants or non-party experts retained by a party or counsel to a party to assist counsel in the preparation and trial of this Litigation. Any party so retaining such a consultant or expert shall have such consultant or expert execute the Agreement attached to this Order and shall keep a copy of such Agreement on file;
(5) persons regarding whom the Discovery Material pertains;
(6) persons who in good faith a party believes authored the Discovery Material or already have knowledge of its contents;
(7) persons who are testifying at a hearing, deposition or trial in this action; and
(8) persons to whom disclosure is required by federal law.
H. So long as this Order is enforced as to any Discovery Material, or portion
thereof designated "Confidential," no use shall be made of the Discovery Material, any
copies thereof, or the contents of such Discovery Material or copies, by persons
authorized pursuant to this Order, except for the purposes of this Litigation.
Notwithstanding anything to the contrary hereinabove, nothing in this Order shall restrict
a party's or third party's ability to use or disclose its own documents or proprietary
information. In addition, notwithstanding any other provision in this Order, EEOC shall
not be restricted in its ability to use or disclose Discovery Material designated as
"Confidential" by Defendant but that pertains to EEOC's claimants in this case.

DC:69413.1

- 4-

I.

Discovery Material designated as "Confidential" pursuant to this Order

may only be reviewed by or disclosed or otherwise revealed to those persons specified in

this Order, respectively. Moreover, the information contained in such Discovery Material

cannot be revealed to any person not specified in this Order.

J.

The restrictions and obligations regarding Discovery Material designated

as "Confidential" shall apply only to documents and information produced in this

Litigation. In addition, the restrictions and obligations regarding Discovery Material

designated as "Confidential" shall not apply to Discovery Material that is already public

knowledge at the time of production or that becomes public knowledge subsequent to

production unless it becomes public knowledge because of a violation of this Order.

Moreover, if a party files with the Court any Discovery Material that it previously

designated as "Confidential" and such filing is not made under seal, such Discovery

Material shall no longer be considered "Confidential" within the meaning of this Order,

as it will be a matter of public record.

II. CONCLUSION OF LITIGATION:

After the conclusion of this litigation, this Order shall continue to remain in full

force and effect, and the Court shall retain jurisdiction to enforce its provisions.

III. EXCEPTIONS TO PROTECTIVE ORDER:

There are no exceptions except as may be provided by Order of the Court

following notice to all the parties, pursuant to the procedure as outlined above. This

Order shall be without prejudice to the right of any party to bring to the Court at any time

the question of whether any particular document or information is "Confidential" or

whether its use should be restricted.

Notwithstanding the foregoing, any party may at any time remove its previous

"Confidential" designation regarding any Discovery Material.

DC:69413.1

-5-

IV. FILING OF CONFIDENTIAL INFORMATION UNDER SEAL:

All Discovery Material designated as "Confidential" that is filed with the Court,

and all pleadings, motions, or other papers filed with the Court that contain or disclose such Discovery Material, shall be filed in accordance with the procedures set forth in the

Local Rules and CM/ECF procedures of this Court for filing of documents under seal, including the filing of a Motion to Seal. Given that in this circumstance the Motion to

Seal will be filed by the non-designating party, it need only reference this Order and need

not set forth the reasons for sealing, as the burden of demonstrating the propriety of sealing shall be upon the designating party. Thereafter, within the time frame permitted

under the Local Rules of this Court for filing a Response to the Motion to Seal, the designating party shall file a pleading specifically identifying the Discovery Material that

it will consent to have filed not under seal (if any), the Discovery Material it believes should remain "Confidential" and be filed under seal (if any), and the reasons why the latter Discovery Material should be filed under seal. Such pleading shall apply

controlling law regarding the First Amendment and common law rights of access to judicial records. Thereafter, within the time frame permitted under the Local Rules of

this Court for filing a Reply regarding the Motion to Seal, the non-designating party shall file a pleading identifying which Discovery Material (if any) that the designating party seeks to have filed under seal but that the non-designating party believes should not be

filed under seal and the reasons why that Discovery Material should not be filed under seal (again, applying controlling law regarding the First Amendment and common law

rights of access to judicial records). V. MISCELLANEOUS
This Order shall not govern use of "Confidential" Discovery Material regarding

any hearing or trial in this action. This Order, being an order of the Court, is enforceable by all lawful and

appropriate means. However, neither this Order nor any provision thereof shall be

DC:69413.1

- 6-

5th

November

/s/

AGREEMENT I, _ _ _ _ _ _ _ _ ______, declare under penalty of perjury that the following is true and correct: I reside at _ _ _ _ _ _ _ _ _ _ in the City of _ _ _ _ _ _ _ _ and State of _______; I have read the Stipulated Protective Order concerning Confidential Information entered on ______ (the "Protective Order"); I am (state relationship to litigation) ________ regarding the litigation between the Equal Employment Opportunity Commission on the one hand and Denny's, Inc. on the other, the same being Civil Action No. 1:06-cv-02527-AMD in the United States District Court for Maryland; that I am fully familiar with and agree to comply with and be bound by the provisions of said Protective Order; and that I will not divulge to persons other than those specifically authorized by said Protective Order, and will not copy or use except solely for the purposes of this litigation, any information constituting Confidential Information under the Protective Order except as provided therein. Dated:
--------
Signature
DC:69413.1

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION
*

EQUAL EMPLOYMENT OPPORTUNITY * COMMISSION,
* Plaintiff,
* v.
* DENNY’S, INC.,
* Defendant.
*

CIVIL NO.: WDQ-06-2527

* * * * * * * * * * * * *

MEMORANDUM OPINION

The Equal Employment Opportunity Commission (“EEOC”) sued

Denny’s for wrongful termination of disabled employees in

violation of the Americans with Disabilities Act of 1991

(“ADA”). Paula Hart, an above-the-knee leg amputee, is one of

the claimants. Pending is Denny’s motion for summary judgment

on the claims with respect to Hart and its motion to seal that

document. For the following reasons, the motion for summary

judgment will be denied, and the motion to seal will be granted.

I. Background1

In May 1999, Hart began working as a Restaurant Manager at

Denny’s on Belair Road in Baltimore, Maryland (the “Belair

1 For Denny’s motion for summary judgment, the EEOC’s “evidence is to be believed, and all justifiable inferences are . . . drawn in [its] favor.” Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

Restaurant”). Paula Hart Dep. Ex. 20, Aug. 23, 2007 [hereinafter Hart Dep. I]. She typically worked from 7:00 a.m. to 5:00 p.m. five days a week. Id. 64:9-22. On three days, her shift overlapped with General Manager Julia Bullock; on two days, Hart was the only manager on duty. Id.
Denny’s job description states that a restaurant manager: (1) ensures that menu items are prepared and served in accordance with Denny’s standards; (2) maintains proper inventory levels for food and nonfood items; (3) directs employees to ensure proper service; (4) investigates and coordinates response to customer feedback; (5) manages labor, cash, food costs, and operating expenses; (6) stays aware of local market trends; and (7) recruits, interviews, hires, and trains hourly employees. Hart Dep. I, Ex. 3 at 1-2 (Denny’s Restaurant Manager Job Description, July 2002). A restaurant manager is expected to be capable of “extensive standing and walking without breaks” and “work[ing] irregular hours.” Id. at 3 (listing the “Physical Requirements” of the job).
As a “front of the house” manager,2 Hart focused on the dining room, customer service, and administrative tasks.3 Hart
2 The parties dispute Hart’s characterization of her role as a primarily “front of the house” manager. See Def.’s Reply 10; Def.’s Mot. 6. Because Hart admits that she was frequently the only manager on duty, Denny’s argues that her responsibilities included management of the entire Belair Restaurant and not merely the “front of the house.” Def.’s Reply 10 n.10.
2

Dep. I 44:19-46:9, 58:1-9. She would visit tables to ask about
customers’ experience, expedite orders, refill beverages, and
invite them back again. Id. 58:1-6, 60:10-15, 69:11-15, 71:12-
16. Hart also regularly walked “figure-eights” around the
restaurant to inspect, direct employees, and help out when needed. Id. 66:6-21, 72:5-10.4
In November 2002, Hart took medical leave after
debilitating numbness in her right leg. Id. 113:18-114:16. Her
December 2002 and January 2003 surgeries resulted in an above-
the-knee amputation of her right leg. Id. at 124:16-125:6; Paula Hart Decl. ¶ 2, March 12, 2010.5
On March 6, 2003, Denny’s informed Hart that, if she was
unable to return to work by April 27, 2003, she would be
terminated for exceeding the 26-week maximum, short-term disability leave. Pl.’s Opp., Ex. 7.6 On April 3, 2003, Hart’s
3 These administrative duties included creating the employee schedule, calling in employees to cover absences, counting cash, and making bank deposits. Hart Dep. I 56:5-7, 65:21-66:1, 68:3-6, 72:11-19. 4 The EEOC characterized Hart’s position as “wholly managerial” and “primarily responsible for supervision, staff development, and training.” Pl.’s Opp. 2. 5 Hart was diagnosed with peripheral arterial or coronary artery disease and was also borderline diabetic. Hart Dep. I 107:1418, 110:6-21. 6 Hart had taken medical leave from September 17, 2002 to October 20, 2002 and then again starting December 1, 2002. Pl.’s Opp., Ex. 7.
3

surgeon, Dr. Rajesh Raikar, released her to return to work but restricted her activity to “limited light duty until further notice.” Pl.’s Opp. Ex. 8. With the approval of Area Manager Marcy Matyas, Bullock agreed to let Hart return on a modified, part-time schedule and then change to full-time work. Hart Dep. I 121:4-15; Paula Hart Dep. 42:5-16, Aug. 24, 2007 [hereinafter Hart Dep. II].7
On April 7, 2003, Hart returned to work. Hart Dep. I, Ex. 17 at 1. On April 15, 2003, after five days under the modified schedule, Bullock informed Hart that Denny’s area management would no longer allow her to work at the restaurant. Hart Dep. II 52:4-14. Hart contacted Human Resources Manager Bruce Webber for an explanation of this decision, but her two messages were never returned. Id. at 53:22-55:1.
On April 16, 2003, Louise Lock, Esquire,8 contacted Webber to discuss Denny’s view that Hart was a “safety hazard” and Bullock’s opinion that Hart could still work “with some minor accommodations.” Pl.’s Opp., Ex. 9. On May 1, 2003, Lock spoke
7 Hart planned to “work three or four short days and [then] take two vacation days” each week until she exhausted her 80 hours of accumulated vacation time. Hart Dep. I 121:4-12, 164:2-6. Then, Hart planned to resume a full-time schedule. Hart Dep. II 37:2-11. 8 Lock was Hart’s attorney in an unrelated medical malpractice action (Hart v. Raikar, No. 03-C-05-003391 (Baltimore County Cir. Ct.). Hart Dep. II 55:2-11.
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with Assistant General Counsel Robert Barrett to restate her concerns and request that Denny’s reconsider its decision to terminate Hart. Id.9 On May 16, 2003, Barrett sent a letter confirming Hart’s termination. Pl.’s Opp., Ex. 10. He explained that because Hart’s “condition presently requires her to utilize either a walker or wheelchair to ambulate, she is not in a position to perform the essential functions of the job of a restaurant manager.” Id. The letter further stated that Denny’s had “no other available positions which [Hart] could perform in light of her limitations” but would “monitor [her] rehabilitation with the hope and expectation that she [would] soon be released and able to safely perform the essential functions of” her old job. Id.
In June 2003, Hart was fitted with a prosthetic leg. Hart Dep. I 126:19-21.10 On September 30, 2003, Dr. Raiker determined that Hart was “capable of performing full time work, which [was] primarily seated in nature, allow[ed] the flexibility to sit [or] stand when needed, and required minimal lifting.” Pl.’s Opp., Ex. 12. But, in April 2004, Dr. John Loh found that Hart
9 The parties agree that Hart’s termination took effect on May 8, 2003. See Def.’s Mot. 25; Pl.’s Opp. 15. 10 Initially, Hart was only able to use her prosthetic leg “about an hour a day,” id. at 128:1-3, but she eventually could use it up to five hours a day, id. at 136:11-13. By October 2003, Hart could walk with her prosthetic leg and a four-pronged cane. Hart Dep. I 128:13-22.
5

was unable to work because she could not stand, walk, carry, or perform other physical activities during an eight-hour workday. Pl.’s Opp., Ex. 13 at 3.
On September 26, 2006, the EEOC, on behalf of Hart and a class of unidentified Denny’s employees with disabilities, sued Denny’s for unlawful employment practices in violation of Title I of the ADA. Paper No. 1. On December 4, 2006, Denny’s answered the complaint. Paper No. 7. On November 5, 2007, Judge Andre Davis entered an Amended Protective Order, which required, inter alia, that documents disclosing or attaching confidential discovery materials be filed under seal. Paper No. 28 at 6.11 On January 15, 2010, Denny’s moved for summary judgment on the claims with respect to Hart and to seal that motion. Paper Nos. 54 & 55. II. Analysis
A. Standard of Review Under Rule 56(c), summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In considering a
11 Because there has been no opposition to Denny’s motion to seal its memorandum in support of summary judgment and the attached exhibits, that motion will be granted pursuant to the Amended Protective Order.
6

motion for summary judgment, “the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The Court must “view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in h[is] favor,” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the Court also “must abide by the affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial,” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003).
B. Evidentiary Objections The EEOC has challenged several of Denny’s exhibits. Under Fed. R. Civ. P. 56, the Court may consider evidence on summary judgment that would be admissible at trial.12 Depositions and affidavits must be based on personal knowledge, and all documents and other physical evidence must be properly
12 See Conkwright v. Westinghouse Elec. Corp., 739 F. Supp. 1006, 1014 n.7 (D. Md. 1990)(citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2721 (3d 1998)).
7

authenticated and either non-hearsay or within a recognized exception.13 But “uncertified or otherwise inadmissible documents may be considered by the court if not challenged.” Wright, Miller, & Kane, supra, § 2722. An objecting party must “spell out the nature of the defects clearly and distinctly.” 11 James W. Moore, et al., Moore’s Federal Practice, § 56.14(4)(b).
“[T]he papers of a party opposing summary judgment are usually held to a less exacting standard than those of the moving party.” Salami v. North Carolina Agric. & Tech. State Univ., 394 F. Supp. 2d 696, 706 (M.D.N.C. 2005) (quoting Grey v. Potter, No. 1:00CV00964, 2003 WL 1923733, at *4 (M.D.N.C. Apr. 21, 2003)). “[T]he nonmoving party need not produce evidence in a form that would be admissible at trial, but the content or substance of the evidence must be admissible.” Thomas v. IBM, 48 F.3d 478, 485 (10th Cir. 1995)(internal citations omitted). “[D]oubts regarding admissibility are resolved in favor of the party opposing summary judgment.” U.S. v. Bell, 27 F. Supp. 2d 1191, 1194 (E.D. Cal. 1998).
13 See Fed. R. Civ. P. 56(e); Cottom v. Town of Seven Devils, 30 Fed. Appx. 230, 234 (4th Cir. 2002); Orsi v. Kirwood, 999 F.2d 86, 92 (4th Cir. 1993)(“It is well established that unsworn, unauthenticated documents cannot be considered on a motion for summary judgment.”).
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Here, the EEOC has made blanket objections to the “inadmissible hearsay and opinion evidence that is lacking proper foundation” in “various documents generated by thirdparties that are associated with Hart’s disability applications.” Pl.’s Opp. 41. It has also objected to the use of expert reports from Hart’s medical malpractice case on the basis that they “are inadmissible hearsay from third-party witnesses.” Pl.’s Opp. 36. The EEOC has failed to identify the portions of those documents containing hearsay or the foundational evidence omitted. As the nature of the defects has not been clearly and distinctly stated, the documents have not been properly objected to, and the Court will consider them.
C. ADA Violation The EEOC contends that Denny’s violated the ADA by terminating Hart because of her disability when she was capable, with reasonable accommodation, of performing the essential functions of her restaurant manager position. Pl.’s Opp. 30-35. Denny’s argues that, at the time of her termination, Hart was not qualified for the restaurant manager position because she had been restricted to “limited light duty until further notice,” and no reasonable accommodation was suggested that would have allowed her to perform the physical duties of the position. Def.’s Mot. 27-40, 47-49. Denny’s further argues that it was not required to accommodate Hart’s disability by
9

creating a new position for her, exempting her from the physical duties of a restaurant managers, or providing her with unlimited or indefinite leave. Id. at 41-47.
Title I of the ADA prohibits covered entities14 from “discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employees compensation, job training, or other terms, conditions, and privileges of employment.” 42 U.S.C.A. § 12112(a). To make a prima facie case of discriminatory discharge, a plaintiff must show that (1) she was a qualified individual with a disability,15 (2) she was discharged, (3) she was fulfilling her employer’s legitimate expectations at the time of discharge, and (4) the circumstances of her discharge raise a reasonable inference of unlawful discrimination. Rohan v. Networks Presentations LLC, 375 F.3d 266, 273 n.9 (4th Cir. 2004); Ennis v. Nat’l Ass’n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (quoting Burdine, 450 U.S. at 253). Denny’s does not dispute Hart’s
14 “Covered entity” includes an employer. 42 U.S.C.A. § 12111(2). 15 An individual with a disability has (1) a physical or mental impairment that substantially limits one or more of his “major life activities”; (2) a record of such impairment; or (3) been perceived to have a physical or mental impairment. Id. §§ 12102(1) & (3)(A).
10

disability but argues that she was not qualified for the restaurant manager position after her surgeries.
A “qualified individual” is one who “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C.A. § 12111(8). “A plaintiff must show that [s]he [could] perform the essential functions of the job at the time of the employment decision or in the immediate future.” Lamb v. Qualex Inc., 33 Fed. Appx. 49, 57 (4th Cir. 2002). Thus, Hart must establish that she could have performed the essential functions of a restaurant manager with reasonable accommodation from Denny’s when, or soon after, she was terminated.
1. Essential Functions An essential function is one that is “fundamental” to a job rather than “marginal.” 29 C.F.R. § 1630.2(n)(1). To determine if a particular function is essential, courts may consider, among other things, whether: (1) the position exists to perform that function, (2) a limited number of employees is available to whom that function can be assigned, or (3) the employee was hired for her ability to perform that function because it requires highly specialized knowledge. Id. § 1630.2(n)(2). Courts must give “consideration . . . to the employer’s judgment as to what functions of a job are essential,” and a written position description prepared by the employer before
11

advertising or interviewing for that position “shall be considered evidence of the essential functions of the job.” 42 U.S.C.A. § 12111(8). Other evidence bearing on whether a particular function is essential includes: (1) the time spent performing that function, (2) the consequences of not requiring the employee to perform that function, (3) a collective bargaining agreement, and (4) the experience of current and past employees in the same position. 29 C.F.R. § 1630.2(n)(3). Generally, “a plaintiff fails to perform the essential function only if her failure detrimentally affects the purpose of the employment.” Rohan, 375 F.3d at 279.
The parties dispute whether certain physical tasks were essential functions of a restaurant manager. Denny’s argues that, in addition to their administrative and oversight duties, restaurant managers must be capable of performing all of the tasks regularly handled by the “code” positions--i.e., the cook, server, dish washer, hostess, and other hourly staff. Def.’s Mot. 3-14. Denny’s has provided affidavit and deposition testimony from numerous Denny’s employees and an expert report from Dr. Cristina Banks, an organizational psychologist, to show that up to 25% of restaurant managers time is routinely spent on activities such as: (1) carrying trays of food, (2) collecting dishes from tables, (3) dish washing, (4) filling beverages, (5) stocking and monitoring supplies, (6) seating patrons, (7)
12

preparing and cooking food, (8) cleaning, (9) attending to patron concerns, (10) unloading and lifting delivery boxes, (11) “traying up” food for the servers, (12) visiting patrons’ tables, and (13) carrying bus tubs and helping to “pre-bus” tables. Id.
To ensure adequate staff supervision and quality customer service, Denny’s restaurant managers are expected to move quickly between tasks and circulate through the entire restaurant. Id. at 9, 12-13. Because of the position’s physical demands and Hart’s restriction to “limited light duty until further notice,” Denny’s argues that Hart could not perform the essential functions of a restaurant manager in May 2003 or anytime shortly thereafter.
The EEOC disagrees with Denny’s assertion that a restaurant manager needed to be capable of performing all of the code position tasks. Pl.’s Opp. 18-23. To support its view that Hart’s position was “wholly managerial,” the EEOC relies on: (1) the restaurant manager job description, (2) Hart’s experience before her termination, and (3) an expert analysis of the Belair Restaurant’s operations by Daniel Rappucci, a vocational rehabilitation counselor.16
16 The EEOC also criticizes the evidence supporting Dennny’s motion for summary judgment, arguing that (1) the Banks report “ignore[d] basic principles of ADA methodology,” and (2) Debra Shook’s testimony about her experience as a restaurant manager
13

That duties are not listed in a job description is some evidence that they may not be essential to a position. See Calef v. FedEx Ground Packaging Sys., Inc., 343 Fed. Appx. 891, 902 (4th Cir. 2009). Here, the restaurant manager job description states numerous supervisory and administrative responsibilities but does not require restaurant managers to be able to perform the duties of other code positions. Because the restaurant manager job description did not list that function, the EEOC argues that this duty was not fundamental to the position. Id. at 1-2, 20.
Hart’s description of her experience as a restaurant manager before her surgeries is also relevant evidence of the essential functions of her position. See Skerski v. Time Warner Cable Co., 257 F.3d 273, 281 (3d Cir. 2001). In her declaration and deposition, Hart described her primary responsibilities as “dealing with customers,” doing “paperwork,” and directing other employees. Hart Dep. I 56:5-10, 58:7-9. Id. at 72:20-22. She did not find the position to be “physically demanding.” Id. at 97:17. Because the Belair Restaurant had a large number of staff, Hart never had a problem finding someone to cover another
at the Belair Restaurant is largely irrelevant because, unlike Hart, she worked the “graveyard shift” and was primarily a “back of the house” manager. Pl.’s Opp. 23-29. Because the Court does not weigh the evidence on summary judgment, see Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004), these arguments will not be addressed.
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employee’s absence. Id. 72:20-22. The Belair Restaurant also had several Star Coordinators,17 who were specifically designated to fill-in as needed for other positions. Hart explained that during her shifts she rarely, if ever, (1) cooked,18 (2) delivered food for the servers,19 (3) performed heavy lifting,20 (4) unloaded delivery trucks,21 (5) fixed things that were broken,22 (6) cleaned,23 or (7) moved bus tubs.24 Thus, Hart’s testimony about her work is inconsistent with Denny’s characterization of the physical tasks routinely performed by restaurant managers.
Rappucci’s report and testimony cast further doubt on the importance of the physical tasks to Hart’s position. During his two-day observation of the day-shift operations at the Belair Restaurant, Rappucci never “observe[d] the manager performing a code task or duty that could not have been performed by another available employee.” Pl.’s Ex. 17 at 20. He found that there 17 Hart Decl. ¶ 12. 18 Hart Dep. I 44:21-45:7; 59:3-60:5. 19 Id. at 58:15-59:2; 62:2-4. 20 Id. at 100:9-12. 21 Id. at 74:2-9. 22 Id. at 66:9-16. 23 Id. at 67:7-22; Paula Hart Decl. ¶ 6, March 12, 2010. 24 Id. at 71:7-9.
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was “managerial discretion in regard to job task performance,” i.e., some managers chose to engage in more physical tasks than others. Id. Thus, he concluded that “discretionary performance of code job tasks is a marginal job function.” Id. at 20-21.25
The evidence presented by Denny’s and the EEOC creates a question of fact about the physical duties of a restaurant manager. Drawing inferences in favor of the EEOC, a reasonable jury could conclude that an ability to perform all the other code positions was not an essential function of the restaurant manager. Accordingly, summary judgment must be denied.
2. Reasonable Accommodation Unless it would “impose an undue hardship on the operations of [its] business,” an employer must make “reasonable accommodations” for an otherwise qualified person with a disability. 42 U.S.C.A. § 12112(b)(5)(A). Reasonable accommodations may include “making existing facilities . . . accessible to and usable by individuals with disabilities” and “job restructuring, part-time or modified work schedule, reassignment to a vacant position, acquisition or modification of equipment or devices . . . and other similar accommodations
25 Rappucci also determined that “the associated essential function . . . would be ‘ensur[ing] guest satisfaction th[r]ough directing operational execution of proper service . . . [making] changes to the operation as necessary to ensure guest satisfaction.’” Pl.’s Ex. 17 at 21 (quoting the restaurant manager job description).
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for individuals with disabilities.” Id. § 12111(9). The plaintiff has the initial burden to identify an accommodation that would allow her to perform the job, and the ultimate burden of persuasion as to its reasonableness. Lamb, 33 Fed. Appx. at 59.26
The EEOC has argued that Hart’s brief return to the Belair Restaurant in April 2003 demonstrates that she was capable of working as a restaurant manager with reasonable accommodation. Pl.’s Opp. 31-35. Denny’s argues that the temporary, administrative position “created” for Hart during her brief return did not encompass the essential functions of a restaurant manager; thus, her ability to perform that work does not show that she could perform her old job with reasonable accommodation. Def.’s Mot. 41-43.
To establish a prima facie case of failure to accommodate, a plaintiff must show that: (1) she is disabled, (2) the employer had notice of her disability, (3) she could have performed the essential functions of the position with reasonable accommodation, and (4) the employer refused to make such accommodations. Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001) (quoting Mitchell v. Washingtonville Cent. Sch.
26 “Once the plaintiff has met [her] burden of proving that reasonable accommodations exist, the employer may present evidence that the plaintiff’s requested accommodation imposes an undue burden on the employer.” Lamb, 33 Fed. Appx. at 59 (citing 42 U.S.C.A. § 12112(b)(5)(A)).
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Dist., 190 F.3d 1, 6 (2d Cir. 1999)). Before it can be determined whether a plaintiff could have performed the essential functions of a position with reasonable accommodation, those functions must be established. Here, the essential functions of a restaurant manager are in dispute. Accordingly, summary judgment is precluded.
3. Prior Representations About Hart’s Ability to Work
Denny’s contends that Hart has made prior representations about her inability to work--in her malpractice action27 and successful applications for long-term disability and Social Security Disability Insurance (“SSDI”) benefits--which are “wholly inconsistent” with her current position that she could have performed the essential functions of a restaurant manager in May 2003. Def.’s Mot. 37-40. The EEOC disagrees. Pl.’s Opp. 35-43.
a. Evidence in Hart’s Medical Malpractice Action
Denny’s argues that Hart admitted that she was unable to work in interrogatory responses in her medical malpractice case. In those responses, Hart stated that she had “lost wages from May 2003,” Hart Dep. Ex. 30 at 3, and “been unable to work since
27 Denny’s does not appear to argue that factual findings from Hart’s medical malpractice action have a preclusive effect but instead contends that no reasonable jury could find that Hart was able to work in 2003 given statements made and endorsed by her in that action. See Def.’s Mot. 17-22.
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2003,” id. at Ex. 31 at 12. These brief statements, in answer to questions about her anticipated damages, do not indicate whether Hart was unable to work because of her physical incapacity or because Denny’s had fired her. Drawing inferences in favor of the EEOC, the Court assumes the latter.
Denny’s also argues that several experts retained by Hart for her medical malpractice action stated that she was unable to work after the operations. Def.’s Mot. 17-22; Def.’s Reply 1619. Considering those statements in the light most favorable to the EEOC, a jury could reasonably determine that Hart could work in May 2003.
In his October 2006 report, Economist Louis J. Maccini wrote that Hart had a “post-injury income capacity . . . [of] essentially zero.” Def.’s Ex. 25 at 5. But, read in context, this estimate of Hart’s earning capacity appears to be based on Maccini’s finding that “[e]xcept for six days in April 2003, [Hart] has not worked since December 11, 2002” and not on an actual assessment of her physical ability to work. Id. (emphasis added). Maccini also reported that Hart was “now able to do 5% of the cooking and the meal cleanup, 25% of the house cleaning, 25% of the shopping, but none of the yard work.” Id. at 7. These comments on Hart’s ability to do household tasks were made with reference to her capacity at the time of his 2006 report. Because the issue here is whether Hart was able to work
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at the time of her termination in May 2003, Hart’s physical
abilities in 2006 are largely irrelevant.28
Of the expert opinions cited by Denny’s, only Vocational
Rehabilitation Counselor Steven Shedlin appears to address
Hart’s ability to work as a restaurant manager at Denny’s in May
2003. See Def.’s Ex. 26. His February 22, 2006 report stated
that:
[w]ithout a prosthesis, [Hart] has the functional ability to work in a sedentary capacity, which would rule out her returning to work in any of her prior jobs which required working at a light-medium duty capacity due to standing, walking and some lifting. However, even though she may have the ability to work in a sedentary duty capacity, she has not been released to return to work due to the severe pain that she experiences and the prescription medications that she takes to help alleviate the pain to some degree . . . As such, [Hart] has sustained a total loss of earning capacity from her work as a restaurant manager at Denny’s.
Def.’s Ex. 26 at 2. Although Shedlin’s opinion about Hart’s
ability to work as a restaurant manager in 2003 may be relevant,
it does not end the analysis.
To clarify his 2006 report, Shedlin testified that his
“opinion was that, absent any change in [Hart’s] condition, that
she would have zero earning capacity from that point in 2006
28 The opinions of Dr. Michael April and Life Care Planner Terri Patterson may be similarly limited to Hart’s ability to work in 2006 and 2007. See Michael April Dep. 32:4-17, Aug. 14, 2006 (answering the question of whether Hart was “currently able to work”); Michael April Dep. 86-92, 101-106, Jan. 11, 2007 (reflecting on Hart’s current impairments and ability to work); Terri Patterson Dep. 53:4-6, Apr. 25, 2006 (assessing that “right now [Hart] can’t work given her medical status with all the pains she is having, and limited mobility”).
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through her work life expectancy.” Steven Shedlin Dep. 26:1216, June 24, 2009 (emphasis added).29 He further testified that he did not know “when she had been restricted from returning to work by her treating physician” but only that “in 2006 that was the case.” Id. at 66:21-2, 5. Shedlin also confirmed that he did not “perform a job analysis of the restaurant manager job at Denny’s” or render any opinion as to Hart’s ability to accomplish the essential functions of that position in his 2006 report. Id. at 65:1-21. This testimony indicates that Shedlin’s 2006 report did not assess Hart’s ability, with reasonable accommodation, to perform the essential functions of a Denny’s restaurant manager in May 2003.
b. Applications for Disability Benefits It is well-settled that “[t]he mere act of applying for disability benefits does not estop a plaintiff from making a subsequent ADA claim.” Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001).30 However, to avoid summary judgment in
29 Shedlin also testified that he was “retained to offer an opinion in [Hart’s] personal injury matter concerning her ability to work at the time [he] interviewed her . . . in 2006.” Shedlin Dep. 60:5-10. 30 Despite the appearance of conflict when a plaintiff files a claim under the ADA after having applied for--and received-disability benefits, these “‘claims do not inherently conflict to the point where courts should’ presume that ‘the claimant or recipient of . . . benefits is judicially estopped from asserting that he is a qualified individual with a disability.’”
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such situations, “an ADA plaintiff who is shown to have claimed total disability in the context of another statutory scheme ‘is required to proffer a sufficient explanation for any apparent contradiction between the two claims.’” Id. (quoting EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 378 (4th Cir. 2000)). That explanation must enable a reasonable juror to find “that, assuming the truth of, or the plaintiff’s good faith belief in, the earlier statement, the plaintiff could nonetheless perform the essential functions of her job with or without reasonable accommodation.” Cleveland, 526 U.S. at 807 (internal quotation marks omitted).
Here, the EEOC offers two reasonable explanations for the apparent contradiction between Hart’s ADA claim and the representations in her SSDI application. First, it argues that there is no “temporal overlap” because Hart’s SSDI benefits were not approved until almost a year after she was terminated from Denny’s. Pl.’s Opp. 39. It is undisputed that Hart’s May 2003 application for Social Security benefits was denied, and it was not until after Hart’s June 2004 request for reconsideration that she was approved and began receiving benefits. Hart Dep. I
Fox, 247 F.3d at 177 (quoting Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 800-02 (1999)).
22

187:6-17, Ex. 22.31 Generally, “if an individual has merely applied for, but has not been awarded, SSDI benefits, any inconsistency in the theory of the claims is of the sort normally tolerated by our legal system.” Cleveland, 526 U.S. at 805.
Further, the EEOC argues that when Hart applied for SSDI benefits, she did not thereby mean to imply that she could not work with reasonable accommodation. Pl.’s Opp. 40. Hart testified that she “believed [she] could work as a restaurant manager with help to find reasonable accommodations” when she applied for SSDI benefits and told her Social Security Administration (“SSA”) representative that she had returned to work before Denny’s terminated her. Hart Decl. ¶ 7. Because the SSA does not consider the possibility of reasonable accommodation when a person applies for SSDI, “an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job without it.” Cleveland, 526 U.S. at 803.32 Hart’s present claim that she
31 Hart also stated in her application for reconsideration that her depression had worsened since her initial request. Hart Dep. Ex. 23. 32 There is also no evidence that Hart’s long-term disability insurer considered her ability to work with reasonable accommodation before granting her request for benefits. Hart has testified that during the “application process no one ever
23

could have worked at Denny’s with reasonable accommodation is reconcilable with her past claims for disability insurance. III. Conclusion
For the reasons stated above, Denny’s motion for summary judgment will be denied, and its motion to seal will be granted.

July 16, 2010 Date

_________/s/_________________ William D. Quarles, Jr. United States District Judge

communicated to [her] anything about whether being disabled for benefits purposes meant with or without reasonable accommodation.” Hart Decl. ¶ 4.
24

 
 Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 1 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 1 of 24

IN THE UNITED STATFS DISTRICI' COURT FOR THE DISTRICf OF MARYLAND

EQUAL EMPLOYMENT OPPORTUNTIY )

COMMISSION,

)

)

PlaUntUf,

)

)

v.

)

)

DENNY'S, INC.,

)

)

D e fe n d a n t .

)

Case No. WDQ-06-CV-2527

CONSENT DECREE Plaintiff, the U.S. Equal Employment Opportunity Commission (the "Commission" or "EEOC"), commenced this action on September 26, 2006, in the United States District Court for the District of Maryland (Northern Division) against Defendant Denny's, Inc. ("Defendant"). In its Complaint, the Commission alleged that Defendant engaged in unlawful employment practices by subjecting Charging Party Paula Hart to denial of reasonable accommodation, denial of return to work, and discharge because of her disability, and further subjected a class of aggrieved employees to denial of reasonable accommodation and discharge because of their disabilities in violation of Title I of the Americans With Disabilities Act of 1990, as amended, 42 U.S.C. § 12111, et seq. ("ADA"). In its Answer, Defendant has denied any violations of the ADA. As a result of settlement discussions, the Commission and Defendant desire to resolve this action and all issues raised by the Complaint without the time and expense of contested litigation.

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 2 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 2 of 24
The parties acknowledge the jurisdiction of the United States District Court for the District of Maryland (Northern Division) over the subject matter and over the parties to this case for the purpose of entering this Consent Decree and, if necessary, enforcing this Decree.
The Court, having examined the terms and provisions of the Consent Decree, finds that it is reasonable and just in accordance with the Federal Rules of Civil Procedure and the ADA. The entry of this Consent Decree will further the objectives of the ADA and will be in the best interests of the parties and those for whom the EEOC seeks relief.
This Decree constitutes a full discharge and satisfaction of any and all claims which have been alleged in the Complaint filed in this ADA action by the EEOC based on the EEOC's administrative determination regarding its investigation of the charge filed by Paula Hart (EEOC administrative charge number 120-2004-01756C).
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT: NON-DISCRIMINATION
1. Defendant, its officers, directors, agents, employees, successors, assigns, and all persons in active concert or participation with them or any of them are enjoined from any present or future violations of the ADA that include denying qualified individuals with disabilities medical leave as a reasonable accommodation and other reasonable accommodations incident to return from medical leave when such accommodations are not an undue hardship, discharging qualified individuals with disabilities as a result of unlawful denial of medical leave or other reasonable accommodations incident to return from medical leave, and implementing medical leave policies containing maximum duration of leave provisions that do not provide exceptions to such provisions when necessary to provide reasonable accommodation to qualified individuals with disabilities.
2

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 3 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 3 of 24
NON-RETALIATION 2. Defendant, its officers, directors, agents, employees, successors, assigns, and all persons in active concert or participation with them or any of them are enjoined from, and shall not engage in, reprisal or retaliation of any kind against any person because such person, either in the past or in the future: (a) opposed any practice made unlawful or reasonably believed to be unlawful under the ADA; (b) filed a charge of discrimination with the Commission or any fair employment practices agency under the ADA or raising medical leave issues under any statute within the jurisdiction of EEOC; (c) was identified as a potential witness for the EEOC in this action; (d) requested and/or received relief in accordance with this Decree; (e) participated in any manner in an action under the ADA or in any investigation giving rise to such action; or (f) asserted any rights under this Decree. In this regard, Defendant shall not take any action against any person(s) which constitutes intimidation, coercion, retaliation, harassment, or interference with the exercise of such person's rights under the ADA because of the filing of Charge No. 120-2004-01756C with the EEOC, which form the basis for this case, or because such person(s) gave testimony or assistance, or participated in any manner in any investigation or proceeding in connection with this case under the ADA
RECORD-KEEPING 3. Defendant shall comply with all applicable record-keeping requirements of 29 C.F.R. § 1602.14.
COVERED FACILITIES 4· The provisions of this Consent Decree shall apply to all of Defendant's facilities, work sites, and other locations of its operations.
3

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 4 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 4 of 24
DURATION OF DECREE 5· This Consent Decree shall be in effect for a period of two (2) years from the date it is entered by the Court.
MONETARY RELIEF: CLASS OF AGGRIEVED PERSONS 6. Defendant shall pay a total of $1,300,000 in monetary relief to EEOC Claimants in this case. The EEOC Claimants who will receive such payments and the amounts of those payments for each such person are identified in Attachment A to this Decree. Of the monetary amount listed in Attachment A for each individual Claimant, 25% of the amount shall be considered back pay and 75% of the amount shall be considered compensatory damages. 7. Within fourteen (14) days of entry of this Decree, Defendant will deliver two checks, one constituting back pay and the other constituting compensatory damages, in the amounts identified by EEOC Oess any applicable local, state and federal withholding taxes regarding any amounts designated as back pay) to each Claimant listed in Attachment A by certified mail or by express delivery service at the address provided by the EEOC. Along with the checks, Defendant shall include a separate statement itemizing the amounts of each category of tax "vithholding from the back pay. Defendant shall calculate the tax withholdings by using relevant withholdings information contained in its records concerning each Claimant or, where such records no longer exist, by other objectively reasonable means. Within seven (7) days of the aforementioned payment, Defendant shall send a photocopy of the check payable to the Claimant and withholding itemization, along with a photocopy of the Certified Mail receipt or other documentation of delivery, to Supervisory Trial Attorney Ronald L. Phillips of the EEOC's Baltimore Field Office.
4

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 5 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 5 of 24
8. In the event that the above-referenced payment cannot be delivered to one or more of the Claimants at the address provided, Defendant shall promptly contact EEOC Supervisory Trial Attorney Ronald L. Phillips to obtain a current address for such Claimants for the purpose of prompt Certified Mail delivery or express delivery service, or, if a current mailing address is not available, to otherwise make arrangements for prompt payment. Defendant shall thereafter promptly report any efforts made to deliver payment and shall exercise due diligence to complete such delivery. 9. After the conclusion of the calendar year in which payment is made to Claimants, Defendant shall promptly issue to all such Claimants an IRS Form W-2 for the monetary relief amount constituting back pay and an IRS Form 1099-Misc for the monetary relief amount constituting compensatory damages. Each claimant shall be fully responsible for payment of all taxes concerning monetary amounts reflected in the IRS Form1099-Misc.
OFFERS OF REINSTATEMENT: CLASS OF AGGRIEVED PERSONS 10. Defendant shall offer to reinstate all Claimants identified in Attachment B to the positions they held at the time of their discharges by Defendant, to include the present pay rate for such positions, any and all applicable benefits, and retroactive seniority to include seniority credit for all previous periods of employment as well as the period commencing on the dates of their discharges up to and including the dates of their reinstatement. Such offers shall be made as soon as practicable for the first positions that become available after this Decree is entered by the Court, that are located at a facility operated by Defendant (as opposed to franchisee), and that are within a reasonable commute from the Claimants' residence. Defendant shall provide retraining or refresher training to such Claimants as reasonably warranted under the circumstances. The Claimants shall have fourteen (14) calendar days after receipt of such offers to accept them, and if not accepted
5

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 6 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 6 of 24
within that period, they shall be considered rejected. Each offer shall be made in writing and shall identify the position offered, the pay rate for such position, any and all applicable benefits (if any), the start date, contact person, the fact that the offer must be accepted within fourteen (14) days or it is considered rejected, the geographic location of the job in question (including the store number and street address), and the name and title of the persons who will serve as the Claimants' immediate supervisors. In addition, each such offer shall prominently and explicitly state (a) that Defendant will provide the Claimants v.'ith reasonable accommodations for any disabilities that are required by law to enable the Claimants to perform essential job functions, obtain equal benefits and privileges of employment as compared to non-disabled employees, and/or obtain disability-related medical treatment and recovery and (b) that Defendant will also offer reinstatement to alternative positions, if available, if the Claimants believe they cannot perform their previous position with or without reasonable accommodation. Defendant shall mail each of the aforementioned reinstatement offers by certified mail or by express delivery service. Within seven (7) days of each offer, as well as receipt of any Claimant response to such offers, Defendant shall send a photocopy of the offer and response (if any), along with a photocopy of the Certified Mail receipt or other evidence of delivery, to EEOC counsel of record in this matter. 11. Upon any Claimant's acceptance of a reinstatement offer, Defendant may make such disability-related inquiries and examinations regarding the Claimants as are permitted by the ADA. Defendant shall make any and all reasonable accommodations required by law for such Claimants. If any Claimant who has accepted a reinstatement offer cannot perform essential job functions with or without reasonable accommodation or constitutes a direct threat within the meaning of the ADA that cannot be eliminated or
6

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 7 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 7 of 24
sufficiently reduced with reasonable accommodation, Defendant may ·withdraw the reinstatement offer. If Defendant withdraws any reinstatement offer, its decision shall be subject to review by the EEOC and, in accordance with procedures set forth in Paragraph 24 of this Decree, by the Court. Defendant shall provide prompt written notice to the Claimant(s) in question of any decision to withdraw a reinstatement offer and the bases for that decision. Contemporaneous with any written notice of withdrawal to the Claimants, Defendant shall send to EEOC counsel of record a copy of that notice and a report setting forth the following information: (a) the name of Claimant whose offer of reinstatement was withdrawn; (b) the reason(s) for withdrawing the offer; (c) any and all facts forming the basis for such reason(s); (d) the identity of any and all persons who participated in the decision to withdraw the offer and nature of their participation; (e) the identity of any and all persons with whom Defendant consulted regarding the decision to withdraw the offer; and (f) copies of any and all documents considered in reaching the decision to withdraw the offer. EQUITABLE REUEF: MEDICAL LEAVE POUCY MODIFICATION AND PUBLICATION 12. To the extent it has not already done so prior to entry of this Decree, Defendant shall ensure that any and all policies related to medical leaves of absence explicitly and prominently state (a) that the Defendant has modified its prior policies and will now make exceptions to any maximum leave duration provisions by providing additional unpaid medical leave beyond the maximum allowed by its policies when necessary to provide reasonable accommodation to employees with disabilities and (b) that any employee who requires additional medical leave beyond Defendant's maximum duration should make a reasonable accommodation request for such leave in accordance with Defendant's procedures. Within thirty (3o) days of entry of this Decree, Defendant shall disseminate a
7

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 8 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 8 of 24
copy of its modified medical leave policies to all employees and provide to EEOC counsel of record a copy of all policies related to medical leave required to be modified by this Decree and a declaration from a responsible Defendant official authenticating the modified policies and verifying that they have been disseminated to all employees.
EQUITABLE RELIEF: REPORTS TO EEOC OF DISCRIMINATION ALLEGATIONS AND WITNESSED CONDUCT
13. Defendant shall submit, through its counsel, written notification to the Commission regarding any and all charges, complaints or reports (i.e., internal complaints or official allegations) of denial of medical leave-based reasonable accommodation and any action taken by Defendant in response to the complaints or reports, as well as all documentation related to the allegations, investigation and disposition of the charge, complaint or report. Defendant's notification to the Commission, through its counsel, must be sent to the Commission's Baltimore Field Office, to the attention ofSupervisory Trial Attmney Ronald L. Phillips, within thirty (30) days of any charges, complaints or reports. Such notifications must be updated and sent to the Commission's Baltimore Field Office every thirty (30) days thereafter until final action is taken by Defendant on the charge, complaint or report. Defendant shall append to all notifications required by this provision of the Decree any and all non-privileged documents generated or obtained in the course of its investigations, including, but not limited to, any investigatory reports, memoranda, notes, witness statements, affidavits or other investigation-related materials.
EQUITABLE RELIEF: POLICIES AND TRAINING 14. To the extent it has not already done so prior to entry of this Decree, Defendant shall undertake good faith, reasonably diligent efforts to update its policies, practices and procedures related to reasonable accommodations for the purpose of fostering compliance
8

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 9 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 9 of 24
with the ADA In furtherance of this requirement, 'Within ninety (go) days of entry of this Decree by the Court, Defendant shall conduct a comprehensive study of its policies, practices and procedures related to reasonable accommodation of employees (including but not limited to requesting, identifying, and providing accommodations, as well as training and employee technical proficiency related thereto) and make recommendations to improve such policies, practices and procedures. Defendant shall complete such review in a reasonably prompt fashion. Within ninety (go) days of completing its review and formulating recommendations, Defendant shall provide EEOC with a written description of the recommended changes to its policies, practices and procedures related to reasonable accommodation of employees, whether they have been or will be implemented, and, if any recommendation will not be implemented, the reason for that decision. However, this provision shall not be construed to require Defendant to produce to EEOC any legal advice Defendant receives from its counsel. 15. Defendant shall conduct training, available on-line, regarding the ADA consistent with the training moduJe developed by Defendant and described in Attachment C. Defendant shalJ commence use of this training module within one hundred twenty (120) days of entry of this Decree, and Defendant shall require all personnel designated to receive such training in Attachment C to complete the training not later than 300 days after entry of this Decree. 16. Not later than sixty (6o) days after entry of this Decree by the Court, Defendant shalJ establish a database- published and accessible to all personnel who make decisions regarding identification or conferral of reasonable accommodation - that specifically
identifies and fully describes representative examples of the full range of workplace
accommodations that have been provided by Defendant; the names, job titles, area of
9

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 10 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 10 of 24
expertise, and contact information of all outside personnel who were consulted in identifying such accommodations; and the name, title and point-of-contact information of one or more Defendant officials involved in the decision-making process regarding the accommodation identified. The purpose of such database shall be to serve as an informational resource for Defendant personnel charged with identifying reasonable accommodations. The database shall not identify the names of employees given the accommodations or the work locations of such persons, and any inquiries by Defendant's personnel regarding the accommodations listed shall be answered by Defendant officials in an manner consistent with confidentiality requirements regarding medical information or history set forth in the ADA (42 U.S.C. § 12112(d)) and EEOC Regulations related thereto. Defendant shall update this database annually. 17. Reasonable Accommodation Tracking System: To the extent it has not already done so prior to entry of this Decree, Defendant's human resource department shall adopt and maintain an electronic tracking system for information regarding medical leave-related reasonable accommodations which shall contain, for each person who has requested a reasonable accommodation or regarding whom Defendant has othenvi.se considered reasonable accommodation on its own initiative, at least the following information: (a) full name and address; (b) position; (c) date of request or first consideration for accommodation on Defendant's initiative; (d) work location; (e) medical condition/alleged disability; (f) accommodation requested or considered on Defendant's own initiative; (g) date of disposition of the request or consideration on Defendant's own initiative; (h) whether accommodation was granted; (i) the type of accommodation granted; (j) the name, address and, if applicable, title and area of expertise of any outside person or entity consulted regarding the accommodation; (k) reason the form of accommodation requested
10

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 11 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 11 of 24
by the employee or applicant was denied (if applicable); and (l) the date any accommodation was ended. Defendant shall maintain aforementioned database throughout the duration of this Decree and provide it to EEOC counsel of record upon reasonable prior written notice of such demand. Defendant shall assign a management official with reasonable proficiency in ADA and reasonable accommodation matters to review thjs database semi-annually and to assess whether the data therein suggest any potential denial of such reasonable accommodations in violation of the ADA. Where the data so suggests, Defendant shall conduct a good faith, reasonably diligent internal investigation of the circumstances in question to determine whether Defendant's personnel acted in conformity with the ADA and with Defendant's own relevant policies. 18. To the extent it has not already done so prior to entry of this Decree, within sixty (6o) days after this Decree is entered by the Court, Defendant shall modify its reasonable accommodation process. Defendant shall require that any decisions made by field operations and/or human resources personnel to deny a reasonable accommodation requested by an employee returning from short term disability leave or a medical leave extension granted by Defendant where the reasonable accommodation requested is related to/seeks to facilitate that employee's return to ·work shall be subject to automatic, reasonably prompt review by one of Defendant's officials assigned to its corporate headquarters who shall be responsible for assessing whether any such denials were made in accordance with the ADA and Defendant's non-discriminatory policies and, where warranted by the circumstances, taking corrective action calculated to secure compliance with the ADA and Defendant's non-ruscriminatory policies. Defendant shall select and train such official(s) to have the technical proficiency necessary to conduct such reviews, and the official(s) shall possess authority to overrule denial decisions made by Defendant's
11

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 12 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 12 of 24
field personnel and direct the provision of appropriate reasonable accommodations. Such review shall include analysis of records and, where reasonably necessary after records review, discussion with the relevant employees and outside persons. Defendant shaH maintain any and all documents related to such reviews throughout the duration of this Decree and provide them to EEOC counsel of record upon reasonable prior written notice ofsuch demand. 19. Self-Assessment Auditing: Each year during the operation of this Decree Defendant shall select, at random, a number not less than s% of the total number of reasonable accommodation reviews of any type made by the Defendant official(s) identified in Paragraph 18 in that year and conduct an audit regarding those decisions to ensure that they were made in conformity with the ADA and with Defendant's own non-discriminatory policies. The audits shall be conducted by Defendant's Legal Department personnel with reasonable proficiency in ADA and reasonable accommodation matters. Such audits shall include review of records and, where reasonably necessary after records review, discussion with the relevant employees and outside persons. 20. Within six (6) months of entry of this Decree by the Court, Defendant shall institute a procedure which evaluates Defendant's personnel who are involved in making decisions regarding identification and provision of reasonable accommodation regarding their compliance with the ADA and Defendant's related non-discriminatory policies. Such compliance will be measured by appropriate testing and other appropriate criteria. Understanding of and compliance with the ADA and Defendant's related nondiscriminatory policies shall be a component of their job descriptions upon which their performance is evaluated in their performance evaluations. Defendant agrees that the failure of any such employee to comply with the ADA and to implement or enforce
L2

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 13 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 13 of 24
Defendant's related non-discriminatory policies shall result in remedial training and, if reasonably warranted under the circumstances, appropriate disciplinary action against the employee, up to and including discharge.
ADDITIONAL REPOR11NG REQUIREMENTS 21. Commencing six (6) months after entry of this Decree by the Court, Defendant shall provide semi-annual reports to the EEOC identifying, for the preceding six-month period, the names, social security numbers, last known home addresses, last known home telephone numbers, most recent job titles, most recent work locations, and dates of discharge of any and all employees discharged during the reporting period under its medical leave policy. Respondent shall append to all such reports copies of all personnel documents related to the discharge and all medical, leave and reasonable accommodation assessment- related documentation related to the individuals listed.
EQUITABLE RELIEF: POSTING OF NOTICE 22. Defendant shall post copies of the Notice attached as Attachment D, in both English and Spanish, in a conspicuous location at all of its facilities and at all places where employee notices are posted. The Notice shall be posted throughout the duration of this Decree, with such period commencing within thirty (30) days of entry of this Decree by the Court. Such Notice shall be typed leg~bly using font sizes not smaller than those used in Attachment D. If multiple pages are used for each such Notice, they shall not be displayed one page behind another but must be posted so that all pages are in order and simultaneously visible (i.e., in horizontal row .or vertical column configuration). In addition, Defendant shall post notice of aU applicable federal equal employment opportunity laws and all other notices required by law. In the event that any of
l3

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 14 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 14 of 24
aforementioned notices becomes defaced, marred or otherwise made unreadable, Defendant shall immediately post a readable copy of such notice(s).
DISPUTE RESOLUTION AND COMPLIANCE REVIEW 23. This Court shall retain jurisdiction to enforce the terms of this Decree and will have all available powers to enforce this Decree, including but not limited to monetary sanctions and injunctive relief. 24. Upon motion ofthe Commission, this Court may schedule a hearing for the purpose of reviewing compliance ·with this Consent Decree. Prior to such motion, the Commission shall notify the Defendant, in writing, of the alleged non-compliance. Upon receipt of written notice, Defendant shall have fifteen (15) days to either correct the alleged noncompliance, and so inform the other party, or deny the alleged non-compliance, in writing;
A. If the parties cannot in good faith resolve their dispute, the Commission may file with the Court a motion to correct and remedy the breach;
B. Each party shall bear its own costs, expenses and attorney's fees incurred in connection with such action; and
C. Jurisdiction to resolve any dispute arising under this Decree resides in the United States District Court for the District ofMaryland.
25. Upon application to, and approval by, the Court, the Commission, its agents and employees shall have the legal authority to conduct compliance reviews, as described below, to monitor Defendant's compliance with the terms of this Decree. Prior to filing any such application with the Court, EEOC shall first submit a \Witten request to Defendant, and Defendant shall have fifteen (15) days to respond to the request. Such compliance reviews may include access to any and all relevant documents for the purposes of inspection and duplication; interviews or depositions of any persons (at reasonable
14

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 15 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 15 of 24
times and locations); upon reasonable prior notice to Defendant's counsel and when reasonably necessary, inspection of any areas within Defendant's facilities; and any other investigatory technique or procedure permitted by the ADA or the Commission's regulations. Neither the Commission's authority under this Paragraph nor any other provisions of this Decree shall be construed to limit or impair in any manner any other Commission authority to conduct investigations of the Defendant that is provided by law, including, but not limited to, investigating charges of discrimination filed under Title VII of the Civil Rights Act of 1964, the Equal Pay Act ("EPA"), the Age Discrimination in Employment Act ("ADEA''), Titles I or V of the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act of 2008, and any statute over which the Commission is given jurisdiction in the future, and conducting directed investigations authorized under the EPA, the ADEA, and any future statute which authorizes directed investigations.
COURT COSTS AND ATTORNEY FEES 26. Each party shall bear its own court costs and attorneys' fees.
MISCELLANEOUS 27. If any provision(s) of this Consent Decree is found to be unlawful, only the specific provision(s) in question shall be affected and the other provisions will remain in full force and effect. 28. The terms of the Consent Decree are and shall be binding upon (a) Defendant; (b) all present and future parents of Defendant; (c) all present and future subsidiaries of Defendant; and (d) all trustees and successors of Defendant. 29. This Consent Decree constitutes the entire agreement and comm itments of the parties. Any modifications t o this agreement must be mutually agreed upon and
15

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 16 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20!11 Page 16 of 24

memorialized in a separate writing signed by Defendant and the EEOC and approved by

the Court.

30. When this Consent Decree requ ires the submission of any documents to the EEOC,

if not otherwise indkated in lhe Decree or Attachments, they shall be mailed by Certified

Mail to the Commission's Baltimore Field Office and to the attention of the Supervisory

Trial Attorney Ronald L. Phillips.

IT IS AGREE D:

E QUAL EMPLOYME NT OPPORTUNITY COMMISSION

P. DAVID LOPEZ

General Counsel

PET

ESCH (Bar No. 12908)

STEVEN

IAN

JAMES L. LEE

Littler M delson, P.C.

Dep uty General Counsel

1150 17t 1 Street, N.W.

Suite 900

GWENDOLYN YOUNG REAMS

Washington, D.C. 20036

Associate General Counsel

(202) 789-3434 Telephone

ll~

(866) 844-1358 Facsimile

~) ~ '/;_4~

f /.{:R..I.i:I'J Attorneys for Defendant Denny's, Inc.

:r ~ 7t - ~ l,;ld7~ lA-1J:lt.-
DEBRA M. LAWRENCE (Bar No. 04312) Dated:

T./Y'\._) (J/j

Regio nal Attorney

EEOC-Philadelphia District Office

City Crescent Building, 3ru Floor

10 South Howard Street

LESTER NAIL

Baltimore, MD 2 12.01

authorized corporate repre entative for

(410) 209-2734 Telephone

Defendant Denny's, Inc.

(410) 962-4270 Facsimile
~7- .

Dated: /3 J;""~ f I

RONALD L. PHILLIPS
MARIA LUl SA MOROCCO Supervisory Trial Attorneys CHARLES E. GUERRIER USA H. HERl"l"AL"\fDEZ Senior Trial Altorneys

16

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 17 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 17 of 24

EEOC-Baltimore Field Office City Crescent Building, 3r<1 Floor 10 South Hm-~d Street Baltimore, MD 21201 (410) 209-2737 Telephone (410) 962-4 270 Facsimile
Dated: C/JvltJ I
ITISSOO~:J:
~ DATED:

UARLES,JR. udge

17

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 18 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 18 of 24

ATIACHMENT A

EEOC Claimants to receive monetary relief pursuant to Paragraph No. 6 of the Consent Decree entered in EEOC v. Denny's, Inc., Case No. WDQ-06-CV-2527 (D. Md.):

Claimant Name

Amount

1. Pamela Becker

$23,000

2. Jeanne Coriano

$23,000

3· Mary Cruz Garcia

$23,000

4· Kendra Hatley

$23,000

5· Christine l(jng-Tyson

$23,000

6. Patricia Lawson

$23,000

1· Tiffany Limon

$23,000

8. Linda Martin

$23,000

9· Carleen Webber

$28,000

10. Estate of Margaret Wilcox

$28,000

n. Tammy Arnbrosen

S35,ooo

12. Joyce Ault

$35,000

13. Justine Butticci

$35,000

14. Linda DeMuth

$35,000

15. Caroline Estrada

$35,000

16. Alice Fields

$35,000

17. Martina Gomez

$35,000

18. Mendy Good

$35,000

19. Eduardo Hernandez

S3s,ooo

20. Gregory Olds

S35,ooo

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 19 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 19 of 24

21. Suzen Olshan 22. Patricia Robertson 23. Malika Sanders 24· Editha Syj uco 25. Andrea Wendt-Caron 26. Steven Majors 27. Rex Stouffer 28. Bertha Robinson 29. Rita Ashenfelder 30. Holly Dinger 31. Angela Jenkins 32. David Leca 33. Ricky Peters 34. Paula Hart

$35,000 $35,000 $35,000 $35,000 $35,000 $45,000 $45,000 $45,000 $5o,ooo $5o,ooo sso,ooo $50,000 $5o,ooo $150,000

ii

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 20 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 20 of 24
ATIACHMENT B
EEOC Claimants to receive offers of reinstatement pursuant to Paragraph No. 10 of the Consent Decree entered in EEOC v. Denny's, Inc., Case No. WDQ-06-CV-2527 (D. Md.):
1. Rita Ashenfelder (restaurant manager)
2. Justine Butticci (general manager)
3. Holly Dinger (first available general manager or restaurant manager in Akron/Canton metro areas)
4. Eduardo Hernandez (first available general manager or restaurant manager) 5· David Leca (restaurant manager)
6. Patricia Robertson (restaurant manager)
7. Tiffanny Limon (server)
Positions listed above are for purposes of the initial written offers of reinstatement and are subject to availability and other conditions set forth in Paragraph No. 10. The listing of positions in Attachment B shall not be construed to eliminate the duty of offering appropriate alternative positions as reasonable accommodations if any Claimant is correctly determined to be unqualified to perform the essential functions of the job initially offered, with or without reasonable accommodation.

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 21 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 21 of 24
ATTACHMENT C

Abstract of ADA Training to be Provided Under Paragraph IS of the EEOC/Denny' s Consent Decree (Case WDQ-06-CV-2527), roposed and adopted by Denny's, Inc.

Audience Denny's l leadquarters: Human resources, leave administration/benefits staff

Field: Field human resources, and area and unit management

Method Electronic training adapted by vendor; formatted for computers at

of

headquarters and for dedicated computers at unit level

Delivery
I Program to have tracking ability on participation, and ability to quizJinteract

with participants

Content Basics of ADA

• Definitions and expanded coverage of law under amendments

• Who is protected? (basic terms)

• No automatic list

• Examples of who may be protected

• Avoiding ADA problems in the hiring/recruitment process

• Interviewing issues: keeping the conversation focused on ability to
perform the job

• Examples

• Managing performance

• Preventing harassment based on disabj(jty

Individualized Assessments and Interactive Process

• Why engage in it?

• What may trigger the process?

• Who may ask for a reasonable accommodation? (applicants,
employees, their health care providers, relatives/companions, etc.)

• Involvement of headquarters
• Other parts of the assessment process (requesting relevant information
on condition and work-related needs and limitations)

Reasonab le Accommodation

• What is it? • Ilow can an accommodation be requested?

• What are the goals of reasonable accommodations?

I

• Enabling the individual to perform the essential functions of their job
and to have equal opportunity to succeed in the job

• •

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 22 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 22 of 24

• Equal enjoyment of other facets of the job
• Understandjng the essential functions of a job (and guidance from headquarters)
• Keeping medical information confidential
• Examples of reasonable accommodations
• Responding to requests and involving headquarters Undue l lardship and Direct Threat
• Concept (basic tenns)
• Gather, discuss, and assess FACTS
• Keep medical information confidential
• Relationship of ADA and Public Health Rules
• FDA Food Code "Big 4" Pathogens
• Examples
• Practice: never assume undue hardship or direct threat to safety/health without prior consultation and approval by headquarters
Particular Issues Relating to Leaves of Absence
• Right to reinstatement exists for employees qualifying under FMLA and returning within period allowed by FMLA
• Expiration ofFMLA period or period covered by STD policy does not automatically mean tem1ination of employment
• Individuals on leave should receive notice that leave is set to expire, and rem inder of opportunity to request reasonable accommodations (including additional leave)
• Requests for such accommodations shall be administered at the headquarters level, and evaluated on case-by-case basis
Discussion of elements of Denny's ADA/Accommodations Policy and Denny's Leave/STD Policy
• Summary of each policy
• Underscore involvement of headquarters as resource • Never terminate or refuse accommodations without prior involvement
of headquarters
Instructions and Resources
• Accommodation requests to be vened with headquarters for guidance • No terminations of employees requesting reasonable accommodatio ns

• •

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 23 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 23 of 24

Timing Duration

without prior involvement of headquarters

• No automatic terminations over expiration of leave without prior
notice to employee and prior approval by headquarters

• Always use headquarters as your ADA and accommodations resource

• Potential resources available to headquarters: Job Accommodation
Network, state rehabilitation agencies, vocational counselors, legal
counsel, experience from other accommodation situations nationwide

Roll-out expected within 120 days of entry ofDecree, with projected

completion dates for active employees in audience within the following 180

days.

Completion of this e-leaming module is expected to take approximately one

hour for most individuals participating in the module; headquarters human

resources and leave administration personnel have received or are to receive

additional instruction.

I

- ... .

Case 1:06-cv-02527-WDQ Document 89 Filed 06/24/11 Page 24 of 24 Case 1:06-cv-02527-WDQ Document 88-1 Filed 06/20/11 Page 24 of 24
ATTACHMENT D
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

POSTEDPURSUANTTOFEDERALCOURTORDER

This Notice is being posted pursuant to a policies that apply to all other, non-disabled

federal court order voluntarily resolving a employees can be forms of reasonable

disability discrimination lawsuit brought by the accommodation in appropriate circumstances.

U.S. Equal Employment Opportunity

Commission (EEOC), an agency ofthe federal Denny's has changed its medical leave of

government, against Denny's, Inc. In that absence policy and will provide extensions of

lawsuit, called EEOC v. Denny's. Inc., Case emplovees' medical leaves ofabsence beyond

No. WDQ-06-CV-2527 (U.S. District Court the six-month limit when appropriate or

for the District of Maryland), EEOC charged required by law. The decision whether to grant

Denny's with violations ofthe Americans With additional medical leave is made by Denny's

Disabilities Act of 1990 (ADA).

corporate. You may contact the following

Denny's department to request an extension of

The lawsuit charged that Denny's violated your leave of absence:

the ADA by implementing a medical leave of

absence policy that limited the length of such Total Rewards Department, l-800-859-2244.

leaves to not longer than six months without

allowance for additional leave beyond six months that may be required by some ADAqualified disabled employees as a form of reasonable accommodation, extra time to enable them to obtain medical treatment, rehabilitate, and recover before returning to

A copy of this Notice wiJJ be posted in a conspicuous place where employee notices are ordinarily placed and will be replaced if it becomes defaced, marred or otherwise made unreadable.

work at Denny's.

Date Posted:

The Americans With Disabilities Act requires By:

employers to provide reasonable

accommodations to help disabled employees as

Jong as those accommodations do not create an undue hardship on the business. Extensions of

Denny's, Inc.

medical leave and granting disabled employees

exemptions from the requirements of certain

 
 Case: 1:06-cv-2527 As of: 06/03/2017 03:07 PM EDT 1 of 8
CASREF,CLOSED,STAYED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:06−cv−02527−WDQ

EEOC v. Denny's, Inc. Assigned to: Judge William D Quarles, Jr Referred to: Magistrate Judge Paul W. Grimm
Magistrate Judge Paul W. Grimm (Settlement) Cause: 42:2000e
Plaintiff

Date Filed: 09/26/2006 Date Terminated: 06/24/2011 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

EEOC

represented by Debra Michele Lawrence U S Equal Employment Opportunity Commission City Crescent Bldg 10 S Howard St Third Fl Baltimore, MD 21201 14102092734 Fax: 4102092221 Email: debra.lawrence@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles E Guerrier US Equal Employment Opportunity Commission EEOC Birmingham District Office RIdge Park Pl Ste 2000 1130 22nd St South Birmingham, AL 35205 12052122044 Fax: 12052122041 Email: charles.guerrier@eeoc.gov ATTORNEY TO BE NOTICED

Jacqueline H McNair US Equal Employment Opportunity Commission 801 Market St Penthouse Ste 1300 Philadelphia, PA 19107 12154402670 Fax: 12154402674 Email: jacqueline.mcnair@eeoc.gov TERMINATED: 08/08/2016 ATTORNEY TO BE NOTICED

Lisa Hope Hernandez US Equal Employment Opportunity Commission Pittsburgh Area Office Liberty Center 1001 Liberty Ave Ste 1112 Pittsburgh, PA 15222 14123955852 Fax: 14123955749 Email: lisa.hernandez@eeoc.gov ATTORNEY TO BE NOTICED

Maria Luisa Morocco US Equal Employment Opportunity Commission City Crescent Bldg

Case: 1:06-cv-2527 As of: 06/03/2017 03:07 PM EDT 2 of 8
10 S Howard St Third Fl Baltimore, MD 21201 14102092730 Fax: 14109624270 Email: maria.morocco@eeoc.gov ATTORNEY TO BE NOTICED
Ronald L Phillips US Equal Employment Opportunity Commission City Crescent Bldg 10 S Howard St Third Fl Baltimore, MD 21201 14102092737 Fax: 14109624270 Email: ronald.phillips@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Denny's, Inc.

represented by Peter J Petesch Littler Mendelson 815 Connecticut Avenue, NW Suite 400 Washington, DC 20006 12028423400 Fax: 12028420011 Email: ppetesch@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey J Sun AOL Inc 22000 AOL Way Steve Case Center Dulles, VA 20166 17032658342 Fax: 17034669494 ATTORNEY TO BE NOTICED
Steven E Kaplan Littler Mendelson PC 815 Connecticut Avenue Suite 400 Washington, DC 20006 12028423400 Fax: 12028420011 Email: skaplan@littler.com ATTORNEY TO BE NOTICED
Thomas J Flaherty Littler Mendelson PC 1650 Tysons Blvd Ste 700 McLean, VA 22102 17034428425 Fax: 17034428428 Email: tflaherty@littler.com ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 1:06-cv-2527 As of: 06/03/2017 03:07 PM EDT 3 of 8

09/26/2006

1 COMPLAINT against Denny's, Inc., filed by EEOC. (Attachments: # 1 Civil Cover Sheet)(raf, Deputy Clerk) (Entered: 09/28/2006)

09/26/2006

Jury Trial Demand by EEOC. (raf, Deputy Clerk) (Entered: 09/28/2006)

09/28/2006

2 Summons Issued 20 days as to Denny's, Inc.. (raf, Deputy Clerk) (Entered: 09/28/2006)

09/29/2006

3 NOTICE of Appearance by Jacqueline H McNair on behalf of EEOC. (mcb, Deputy Clerk) (Entered: 09/29/2006)

10/18/2006

4 NOTICE by EEOC of Request to Waive Service of Summons (Phillips, Ronald) (Entered: 10/18/2006)

10/18/2006

5 WAIVER OF SERVICE Returned Executed by EEOC. Denny's, Inc. waiver sent on 10/5/2006, answer due 12/4/2006. (Phillips, Ronald) (Entered: 10/18/2006)

12/04/2006

6 Local Rule 103.3 Disclosure Statement by Denny's, Inc. identifying Denny's Corporation as Corporate Parent.. (Petesch, Peter) (Entered: 12/04/2006)

12/04/2006 7 ANSWER to Complaint by Denny's, Inc..(Petesch, Peter) (Entered: 12/04/2006)

12/06/2006

8 NOTICE of Appearance by Jeffrey J Sun on behalf of Denny's, Inc. (Sun, Jeffrey) (Entered: 12/06/2006)

01/18/2007 9 SCHEDULING ORDER (Judge Davis) (Entered: 01/18/2007)

02/01/2007 10 Report re: Deposition hours (Phillips, Ronald) (Entered: 02/01/2007)

02/22/2007 11 NOTICE of Appearance by Charles E Guerrier on behalf of EEOC (slf, Deputy Clerk) (Entered: 02/22/2007)

03/13/2007

12 Joint MOTION to Amend/Correct Scheduling Order by EEOC. Responses due by 3/30/2007 (Attachments: # 1 Text of Proposed Order)(Phillips, Ronald) (Entered: 03/13/2007)

03/13/2007 13 ORDER granting 12 Motion to Amend/Correct (Judge Davis) (Entered: 03/13/2007)

03/21/2007 14 NOTICE of Appearance by Lisa H Hernandez on behalf of EEOC. (mcb, Deputy Clerk) (Entered: 03/22/2007)

03/26/2007 15 NOTICE of Appearance by Maria Luisa Morocco on behalf of EEOC (Morocco, Maria) (Entered: 03/26/2007)

06/11/2007

16 Joint MOTION for Protective Order by Denny's, Inc.. Responses due by 6/28/2007 (Attachments: # 1 Exhibit Stipulated Protective Order Regarding Confidentiality)(Petesch, Peter) (Entered: 06/11/2007)

06/12/2007 17 PROTECTIVE/CONFIDENTIALITY ORDER (Judge Davis) (Entered: 06/12/2007)

08/01/2007

18 Joint MOTION for Extension of Time to Complete Discovery by EEOC. Responses due by 8/20/2007 (Attachments: # 1 Text of Proposed Order)(Phillips, Ronald) (Entered: 08/01/2007)

08/02/2007 19 PAPERLESS ORDER granting 18 Motion for Extension of Time to Complete Discovery (Judge Davis) (Entered: 08/02/2007)

09/18/2007

20 MOTION to Compel by Denny's, Inc.. Responses due by 10/5/2007 (Attachments: # 1 # 2 Exhibit Tab A# 3 Exhibit Tab B# 4 Exhibit Tab C# 5 Exhibit Tab D# 6 Exhibit Tab E# 7 Exhibit Tab F# 8 Exhibit Tab G# 9 Certificate of Discovery)(Petesch, Peter) (Entered: 09/18/2007)

09/20/2007

21 MOTION for Extension of Time to File Response/Reply by EEOC.Responses due by 10/9/2007 (Attachments: # 1 Text of Proposed Order)(Phillips, Ronald) (Entered: 09/20/2007)

09/22/2007 22 PAPERLESS ORDER granting 21 Motion for Extension of Time to File Response/Reply. (Judge Davis) (Entered: 09/22/2007)

09/25/2007 23 ORDER REFERRING CASE to Magistrate Judge Paul W. Grimm for Discovery. Signed by Judge Andre M Davis on 9/24/07 (cag, Deputy Clerk) (Entered:

Case: 1:06-cv-2527 As of: 06/03/2017 03:07 PM EDT 4 of 8

10/16/2007 10/30/2007 10/31/2007 11/02/2007 11/05/2007 04/04/2008 04/04/2008 04/07/2008 04/10/2008
05/02/2008 08/13/2008 11/07/2008 11/10/2008
11/18/2008 12/09/2008 12/15/2008 12/17/2008 12/18/2008 02/02/2009 05/18/2009

09/25/2007)
24 RESPONSE in Opposition re 20 MOTION to Compel filed by EEOC.Replies due by 10/30/2007. (Attachments: # 1 Exhibit 1)(Phillips, Ronald) (Entered: 10/16/2007)
25 REPLY to Response to Motion re 20 MOTION to Compel filed by Denny's, Inc.. (Petesch, Peter) (Entered: 10/30/2007)
26 ORDER granting 20 Motion of Defendant to Compel Discovery. Signed by Judge Paul W. Grimm on 10/31/07. (mcb, Deputy Clerk) (Entered: 10/31/2007)
27 Joint MOTION for Amended Protective Order by Denny's, Inc.. Responses due by 11/19/2007 (Attachments: # 1 Exhibit Amended Stipulated Protective Order Regarding Confidentiality)(Petesch, Peter) (Entered: 11/02/2007)
28 AMENDED PROTECTIVE/CONFIDENTIALITY ORDER (Judge Davis) (Entered: 11/05/2007)
29 STATUS REPORT Joint Proposal Regarding Scheduling Order and Request for Settlement Conference and Limited Stay by Denny's, Inc.. (Attachments: # 1 Text of Proposed Order)(Petesch, Peter) (Entered: 04/04/2008)
30 ORDER APPROVING 29 Status Report, filed by Denny's, Inc. (Judge Davis) (Entered: 04/04/2008)
31 ORDER REFERRING CASE to Magistrate Judge Paul W. Grimm for Settlement. Signed by Judge Andre M Davis on 4/7/08. (hml, Deputy Clerk) (Entered: 04/07/2008)
32 Paperless Order Scheduling a Telephone Scheduling Conference with counsel for Wednesday, April 30, 2008 at 4:00 p.m. The Court would appreciate counsel for Plaintiff, Ronald Phillips, to initiate this telephone conference with defense counsel and the Court. Thanking counsel in advance.(Grimm, Paul)(jnf) (Entered: 04/10/2008)
33 ORDER SCHEDULING SETTLEMENT CONFERENCE. Signed by Magistrate Judge Paul W. Grimm on 5/2/08. (mcb, Deputy Clerk) (Entered: 05/02/2008)
34 Settlement Conference − requesting (Petesch, Peter) (Entered: 08/13/2008)
35 Correspondence re: settlement conference attendance (Phillips, Ronald) (Entered: 11/07/2008)
36 PAPERLESS ORDER Approving Paper No. 35, request to have Associate General Counsel Gwendolyn Youn Reams participate in the settlement by phone. Also, counsel are ADVISED THAT THE SETTLEMENT HAS BEEN MOVED FROM 9:30 A.M TO 12:00 NOON, due to a conflict in the Court's Calendar. Signed by Magistrate Judge Paul W. Grimm on 11/10/08. (Grimm, Paul)(jnf) (Entered: 11/10/2008)
Settlement Conference held on 11/18/2008 before Magistrate Judge Paul W. Grimm. (mcb, Deputy Clerk) (Entered: 11/19/2008)
37 PAPERLESS ORDER DIRECTING PARTIES TO SUBMIT A PROPOSED CASE MANAGEMENT ORDER ON OR BEFORE DECEMBER 17, 2008 (Judge Davis) (Entered: 12/09/2008)
38 NOTICE of Appearance by Thomas J Flaherty on behalf of Denny's, Inc. (Flaherty, Thomas) (Entered: 12/15/2008)
39 Joint MOTION for Extension of Time to Complete Discovery by EEOC Responses due by 1/3/2009 (Attachments: # 1 Exhibit Proposed Amended Scheduling Order)(Phillips, Ronald) (Entered: 12/17/2008)
40 ORDER granting 39 Motion for Extension of Time to Complete Discovery and ENTERING AMENDED SCHEDULING ORDER (Judge Davis) (Entered: 12/18/2008)
41 NOTICE of Appearance by Steven E Kaplan on behalf of Denny's, Inc. (Kaplan, Steven) (Entered: 02/02/2009)
Case reassigned to Judge William D Quarles, Jr. Judge Andre M Davis no longer assigned to the case. (cag, Deputy Clerk) (Entered: 05/18/2009)

Case: 1:06-cv-2527 As of: 06/03/2017 03:07 PM EDT 5 of 8

07/13/2009

42 Correspondence re: Defendant Denny's, Inc. Letter Brief Regarding Location of Class Claimant Depositions (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Petesch, Peter) (Entered: 07/13/2009)

07/13/2009 43 Substantive legal issues − addressing (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Phillips, Ronald) (Entered: 07/13/2009)

07/17/2009 44 LETTER ORDER. Signed by Magistrate Judge Paul W. Grimm on 7/17/09. (mcb, Deputy Clerk) (Entered: 07/17/2009)

07/31/2009

45 RESPONSE re 44 Order Dated July 17, 2009 (Defendant's Objections to Magistrate Judge Paul W. Grimm's Letter Order) filed by Denny's, Inc.. (Attachments: # 1 Exhibit 1 to Defendant's Objections to Magistrate Judge Paul W. Grimm's Letter Order Dated July 17, 2009, # 2 Exhibit 2 to Defendant's Objections to Magistrate Judge Paul W. Grimm's Letter Order Dated July 17, 2009)(Petesch, Peter) (Entered: 07/31/2009)

08/13/2009

46 RESPONSE TO 45 Defendant's Objections To Chief Magistrate Judge Grimm's Letter Order of July 17, 2009 filed by EEOC. (Phillips, Ronald) Modified on 8/14/2009 (das, Deputy Clerk). (Entered: 08/13/2009)

08/19/2009

47 Joint MOTION To Enter Fourth Amended Scheduling Order by Denny's, Inc. Responses due by 9/8/2009 (Attachments: # 1 Exhibit 1 to Joint Motion to Enter Fourth Amended Scheduling Order)(Petesch, Peter) (Entered: 08/19/2009)

08/20/2009 48 FOURTH AMENDED SCHEDULING ORDER. Signed by Judge William D Quarles, Jr on 8/20/09. (mcb, Deputy Clerk) (Entered: 08/20/2009)

08/25/2009

49 REPLY to Response to 45 Response to Magistrate Judge Paul W. Grimm's Letter Order Dated July 17, 2009 by Denny's, Inc. (Petesch, Peter) Modified on 8/26/2009 (mcb, Deputy Clerk). (Entered: 08/25/2009)

10/02/2009 50 MEMORANDUM OPINION. Signed by Judge William D Quarles, Jr on 10/2/09. (mcb, Deputy Clerk) (Entered: 10/02/2009)

10/02/2009

51 ORDER OVERRULING 45 Objection of Defendant to Judge Grimm's Letter Order of July 17, 2009. Signed by Judge William D Quarles, Jr on 10/2/09. (mcb, Deputy Clerk) (Entered: 10/02/2009)

01/07/2010 52 Joint MOTION for Extension of Time to Complete Discovery by EEOC Responses due by 1/25/2010 (Attachments: # 1 Exhibit)(Phillips, Ronald) (Entered: 01/07/2010)

01/08/2010 53 FIFTH AMENDED SCHEDULING ORDER. Signed by Judge William D Quarles, Jr on 1/8/2010. (mcb, Deputy Clerk) (Entered: 01/08/2010)

01/15/2010

54 MOTION to Seal Defendant's Memorandum and Exhibits in Support of Its Motion for Summary Judgment on Claims on Behalf of Paula Hart by Denny's, Inc. Responses due by 2/1/2010 (Attachments: # 1 Text of Proposed Order)(Petesch, Peter) (Entered: 01/15/2010)

01/15/2010

55 MOTION for Summary Judgment on Claims on Behalf of Paula Hart by Denny's, Inc. Responses due by 2/1/2010 (Attachments: # 1 Exhibit Notice of Filing Documents Under Seal)(Petesch, Peter) (1 paper copy of Memorandum in Support, Exhibits and Appendix submitted to Clerk's Office to be filed UNDER SEAL 1/19/10) Modified on 1/19/2010 (mcb, Deputy Clerk). (Entered: 01/15/2010)

01/26/2010

56 Consent MOTION for Extension of Time to File Response/Reply as to 55 MOTION for Summary Judgment on Claims on Behalf of Paula Hart by EEOC. Responses due by 2/12/2010 (Morocco, Maria) (Entered: 01/26/2010)

01/27/2010

57 MARGINAL ORDER granting 56 CONSENT Motion of Plaintiff for Extension of Time to File its Opposition to Defendant's Motion for Summary Judgment on the Plaintiff EEOC's Claims on Behalf of Paula Hart. Signed by Judge William D Quarles, Jr on 1/27/10. (mcb, Deputy Clerk) (Entered: 01/27/2010)

02/18/2010

58 (FILED IN ERROR − WILL REFILE) Consent MOTION for Extension of Time by EEOC Responses due by 3/8/2010 (Morocco, Maria) Modified on 2/19/2010 (mcb, Deputy Clerk). (Entered: 02/18/2010)

Case: 1:06-cv-2527 As of: 06/03/2017 03:07 PM EDT 6 of 8

02/22/2010

59 Consent MOTION for Extension of Time to File Response/Reply as to 55 MOTION for Summary Judgment on Claims on Behalf of Paula Hart by EEOC Responses due by 3/11/2010 (Morocco, Maria) (Entered: 02/22/2010)

02/22/2010

60 MARGINAL ORDER granting 59 CONSENT Motion of Plaintiff for Extension of Time to File Opposition to Motion for Summary Judgment. Signed by Judge William D Quarles, Jr on 2/22/10. (mcb, Deputy Clerk) (Entered: 02/23/2010)

03/12/2010

61 RESPONSE in Opposition re 55 MOTION for Summary Judgment on Claims on Behalf of Paula Hart filed by EEOC. Replies due by 3/29/2010. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 table of contents)(Phillips, Ronald) (1 paper copy submitted to Chambers on 3/15/10) Modified on 3/15/2010 (mcb, Deputy Clerk). (Entered: 03/12/2010)

03/29/2010

62 REPLY to Response to Motion re 55 MOTION for Summary Judgment on Claims on Behalf of Paula Hart filed by Denny's, Inc.. (Attachments: # 1 Exhibit A to Reply, # 2 Exhibit B to Reply, # 3 Exhibit C to Reply, # 4 Exhibit D to Reply)(Petesch, Peter) (Entered: 03/29/2010)

05/14/2010

63 LOCAL RULE 104.7; MOTION to Compel Discovery From the Equal Employment Opportunity Commission by Denny's, Inc. Responses due by 6/1/2010 (Attachments: # 1 Exhibit Memorandum in Support of Motion to Compel, # 2 Exhibit 1 to Memorandum in Support of Motion to Compel, # 3 Exhibit 2 to Memorandum in Support of Motion to Compel, # 4 LOCAL RULE 104.7 CERTIFICATE, # 5 Exhibit A to Attachment 3 to Memorandum in Support of Motion to Compel, # 6 Exhibit 4 to Memorandum in Support of Motion to Compel, # 7 Exhibit 5 to Memorandum in Support of Motion to Compel, # 8 Exhibit 6 to Memorandum in Support of Motion to Compel, # 9 Exhibit 7 to Memorandum in Support of Motion to Compel)(Petesch, Peter) Modified on 5/17/2010 (mcb, Deputy Clerk). (1 paper copy submitted to Chambers on 5/18/10) Modified on 5/18/2010 (mcb, Deputy Clerk). (Entered: 05/14/2010)

05/27/2010

64 PAPERLESS ORDER denying Defendant's Motion to Compel, Paper No. 63, without prejudice to refiling after complying with the procedure set forth in Local Rule 104.8. Signed by Magistrate Judge Paul W. Grimm on 05/27/2010. (Grimm, Paul) (ly) (Entered: 05/27/2010)

06/09/2010

65 (WITHDRAWN − See Docket #66) MOTION for Protective Order by EEOC Responses due by 6/28/2010 (Attachments: # 1 Memorandum in Support of Motion for Protective Order, # 2 Exhibit, # 3 Exhibit, # 4 Text of Proposed Order)(Hernandez, Lisa) Modified on 8/16/2010 (mcb, Deputy Clerk). (Entered: 06/09/2010)

06/28/2010 66 NOTICE by Denny's, Inc. re 65 MOTION for Protective Order and Withdrawal and Resolution of Discovery Motions (Petesch, Peter) (Entered: 06/28/2010)

07/16/2010 67 MEMORANDUM OPINION. Signed by Judge William D Quarles, Jr on 7/16/10. (bmh, Deputy Clerk) (Entered: 07/16/2010)

07/16/2010

68 ORDER denying 55 Denny's Motion for Summary Judgment; and granting 54 Denny's Motion to Seal. Signed by Judge William D Quarles, Jr on 7/16/10. (bmh, Deputy Clerk) (Entered: 07/16/2010)

08/03/2010

69 MOTION for Partial Summary Judgment On Untimely Class Claims by Denny's, Inc. Responses due by 8/20/2010 (Attachments: # 1 Exhibit Memorandum in Support of Motion for Partial Summary Judgment on Untimely Class Claims, # 2 Exhibit 1 to Memorandum to Motion for Partial Summary Judgment on Untimely Class Claims, # 3 Exhibit 2 to Memorandum to Motion for Partial Summary Judgment on Untimely Class Claims, # 4 Exhibit 3 to Memorandum to Motion for Partial Summary Judgment on Untimely Class Claims, # 5 Exhibit 4 to Memorandum to Motion for Partial Summary Judgment on Untimely Class Claims, # 6 Exhibit 5 to Memorandum to Motion for Partial Summary Judgment on Untimely Class Claims, # 7 Exhibit 6 to Memorandum to Motion for Partial Summary Judgment on Untimely Class Claims, # 8 Exhibit 7 to Memorandum to Motion for Partial Summary Judgment on Untimely Class Claims, # 9 Text of Proposed Order Proposed Order)(Petesch, Peter) (1 paper copy submitted to Chambers on 8/4/10) Modified on 8/4/2010 (mcb, Deputy Clerk).

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08/10/2010
08/16/2010 08/16/2010 08/17/2010 08/25/2010 09/02/2010 09/23/2010
10/28/2010
11/22/2010 11/29/2010 12/08/2010 12/08/2010 12/09/2010
12/16/2010 12/17/2010 03/04/2011 03/04/2011 04/27/2011 04/28/2011

(Entered: 08/03/2010)
70 PAPERLESS ORDER requesting that counsel advise the Court whether further settlement negotiations would be productive. Thanking counsel in advance for their cooperation in this matter. Signed by Magistrate Judge Paul W. Grimm on 8/10/10. (Grimm, Paul)(jnf) (Entered: 08/10/2010)
71 Joint MOTION for Extension of Time to File Response/Reply to Motion for Partial Summary Judgment by EEOC. Responses due by 9/2/2010 (Attachments: # 1 Exhibit Proposed Order)(Hernandez, Lisa) (Entered: 08/16/2010)
72 ORDER granting 71 JOINT Motion for Extension of Time to File Response and Reply to Motion for Partial Summary Judgment as therein set forth. Signed by Judge William D Quarles, Jr on 8/16/10. (mcb, Deputy Clerk) (Entered: 08/16/2010)
73 NOTICE by Denny's, Inc., EEOC re 70 Order, on Settlement Negotiations (Petesch, Peter) (Entered: 08/17/2010)
74 ORDER scheduling a settlement conference. Signed by Magistrate Judge Paul W. Grimm on 8/25/10. (bmh, Deputy Clerk) (Entered: 08/26/2010)
75 RESPONSE in Opposition re 69 MOTION for Partial Summary Judgment On Untimely Class Claims filed by EEOC. Replies due by 9/20/2010. (Phillips, Ronald) (Entered: 09/02/2010)
76 RESPONSE in Support re 69 MOTION for Partial Summary Judgment On Untimely Class Claims filed by Denny's, Inc.. Replies due by 10/12/2010. (Attachments: # 1 Exhibit Exhibit 1 to Defendant Denny's, Inc.'s Reply in Support of Motion for Partial Summary Judgment on Untimely Class Claims, # 2 Exhibit Exhibit 2 to Defendant Denny's, Inc.'s Reply in Support of Motion for Partial Summary Judgment on Untimely Class Claims)(Petesch, Peter) (Entered: 09/23/2010)
77 NOTICE by Denny's, Inc. of Supplemental Authority in Support of Denny's, Inc.'s 69 Motion for Partial Summary Judgment on Untimely Class Claims (Attachments: # 1 Exhibit A)(Petesch, Peter) Modified on 10/28/2010 (dass, Deputy Clerk). (Entered: 10/28/2010)
78 Joint MOTION for Extension of Time to Enter Sixth Amended Scheduling Order by Denny's, Inc. Responses due by 12/9/2010 (Attachments: # 1 Text of Proposed Order)(Petesch, Peter) (Entered: 11/22/2010)
79 SIXTH AMENDED SCHEDULING ORDER. Signed by Judge William D Quarles, Jr on 11/29/10. (das, Deputy Clerk) (Entered: 11/30/2010)
80 Settlement Conference − requesting (Petesch, Peter) (Entered: 12/08/2010)
81 Correspondence re: settlement conference (Phillips, Ronald) (Entered: 12/08/2010)
82 PAPERLESS ORDER − APPROVING ECF # 80, Defendant Denny's Request, to have their representative, with full settlement authority in this matter, be permitted to participate in the settlement conference by telephone. Signed by Magistrate Judge Paul W. Grimm on 12/9/10. (Grimm, Paul)(jnf) (Entered: 12/09/2010)
83 ORDER STAYING CASE for 60 days pending conclusion of settlement discussions. Signed by Judge William D Quarles, Jr on 12/16/10. (das, Deputy Clerk) (Entered: 12/17/2010)
Settlement Conference held on 12/17/2010 before Magistrate Judge Paul W. Grimm. (das, Deputy Clerk) (Entered: 12/17/2010)
84 PAPERLESS ORDER directing the parties to file a Joint Status Report within fourteen (14) days of this order. Signed by Magistrate Judge Paul W. Grimm on 3/4/11. (Grimm, Paul)(mpk) (Entered: 03/04/2011)
85 STATUS REPORT by EEOC. (Phillips, Ronald) (Entered: 03/04/2011)
86 Status Report Submitted by EEOC (Phillips, Ronald) (Entered: 04/27/2011)
87 ORDER APPROVING 86 Status Report Submitted filed by EEOC. Signed by Judge William D Quarles, Jr on 4/28/11. (dass, Deputy Clerk) (Entered: 04/28/2011)

Case: 1:06-cv-2527 As of: 06/03/2017 03:07 PM EDT 8 of 8
06/20/2011 88 Joint MOTION to Approve Consent Judgment by EEOC Responses due by 7/8/2011 (Attachments: # 1 Consent Decree)(Phillips, Ronald) (Entered: 06/20/2011)
06/24/2011 89 CONSENT DECREE and approval. Signed by Judge William D Quarles, Jr on 6/24/11. (dass, Deputy Clerk) (Entered: 06/24/2011)

 
 Denny's Sued by EEOC for Disability Bias Against Class of Workers Na...

http://www.eeoc.gov/press/9-28-06.html

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE September 28, 2006

CONTACT:

Jacqueline McNair Regional Attorney (215) 440-2666/2670 TTY:(215) 440-2610 Debra Lawrence (410) 962-4349 M. Patricia Tanner
Program Analyst (410) 962-3707

DENNY’S SUED BY EEOC FOR DISABILITY BIAS AGAINST CLASS OF WORKERS NATIONWIDE

At Issue: Failure to Provide Reasonable Accommodation for Medical Leave
BALTIMORE -- The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it filed a federal discrimination lawsuit under the Americans with Disabilities Act (ADA) against Denny’s, Inc., which operates more than 500 corporate-owned restaurants in 30 states, on behalf of disabled employees nationwide who were not provided reasonable accommodation and were fired after being denied medical leave needed in connection with their disabilities.
In its suit, the EEOC charges that Denny’s refused to provide one of its restaurant managers in Baltimore with legally-required reasonable accommodations for her disability, a leg amputation; prohibited her from working in its restaurants because of her disability, despite her desire to return to work; and fired the employee because of her disability. EEOC further charges that Denny’s violated the rights of a class of workers with disabilities by maintaining a maximum medical leave policy that automatically denied additional medical leave beyond a pre-determined limit -- even when additional leave was required by the ADA as a reasonable accommodation for those workers -- resulting in their unlawful terminations.
"We have worked hard at the EEOC to make equal employment opportunities for people with disabilities a reality,” EEOC Chair Naomi C. Earp said. “The Commission remains committed to vigorous ADA enforcement and outreach to ensure that all individuals with disabilities have the freedom to compete in the workplace on a fair and level playing field."
EEOC’s lawsuit was filed in U.S. District Court for the District of Maryland (Civil Action No. 1:06-cv-02527-AMD) only after attempts to voluntarily settle the matter proved unsuccessful. EEOC seeks a court order requiring Denny’s to comply with the ADA and barring Denny’s from applying its maximum medical leave policy to disabled employees who are lawfully entitled to additional medical leave. In addition, EEOC seeks lost wages and benefits, compensatory and punitive damages, and other relief for victims and the public.
“This lawsuit reminds us that disability discrimination is still a persistent problem in today’s workplace, more than 15 years after passage of the landmark Americans with Disabilities Act,” said Jacqueline McNair, EEOC Regional Attorney for the Philadelphia District, which includes Baltimore. “Employers should remember that people with disabilities are an untapped pool of talent who are ready, willing and able to work – often times, all they need is an equal opportunity.”
Title I of the ADA prohibits employ¬ment discrimina¬tion against people with disabilities in the private sector and state and local governments. Since Title I of the ADA became effective in July 1992, the EEOC has obtained more than $600 million in monetary relief, compensation and other benefits for victims of disability discrimination through the agency’s enforcement and litigation process – as well as injunctive relief.
EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

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