• •

0 IN THE UNITED STATES DISTRICT COUR1F : 1 ~

FOR THE WESTERN DISTRICT OF TE~~ I!' P .".-/- ":? 02

SAN ANTONIO DIVISION

lCJ', ";vL c'f1 .J'

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
NFl MANAGEMENT, INC., D/B/A HOME MANAGEMENT, INC., ALSO D/B/A DOVE TREE APARTMENTS,
Defendant.

§ § § § § § Civil Action No.
~~A04CA0656 COMPLAINT AND
§ JURY TRIAL DEMAND § §

0. G

NATURE OF THE ACTION

This is an action under Title I ofthe Americans with Disabilities Act of 1990 and Title I of

the Civil Rights Act of 1991 to correct unlawful employment practices on the basis ofdisability and

to provide appropriate relief to Defendant's fonner employee, Felix Castro, who was adversely

affected by such practices. The Equal Employment Opportunity Commission, (the "Commission"),

alleges that Defendant, NFl Management, Inc., d/b/a Home Management, Inc., also d/b/a Dove Tree

Apartments, (hereinafter collectively referred to as "Dove Tree Apartments"), failed to provide Felix

Castro with a reasonable accommodation; it tenninated him from his position of maintenance

technician because ofhis disability; and it failed to return Mr. Castro to his position or a comparable

position and/or rehire Mr. Castro because of his disability.

JURISDICTION AND VENUE

l. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343

and 1345. This action is authorized and instituted pursuant to Section 107(a) ofthe Americans with

Disabilities Act of 1990 ("ADA"), 42 U.S.C. §12117(a), which incorporates by reference Sections

• •
706(£)(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e5(£)(1) and (3), and pursuant to 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 Western District of Texas, San Antonio Division.
PARTIES 3. Plaintiff, the Commission, is the agency ofthe United States ofAmerica charged with the administration, interpretation and enforcement ofTitle I ofthe ADA, and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(£)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(£)(1). 4. At all relevant times, Defendant, Dove Tree Apartments, has continuously been doing business in the State ofTexas and the City of San Antonio, and has continuously employed at least fifteen (15) employees. 5. At all relevant times, Defendant, Dove Tree Apartments, has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.c.§ 12111(5), and Section 101(7) ofthe ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h). 6. At all relevant times, Defendant, Dove Tree Apartments, has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Felix Castro filed a charge with the Commission alleging violations of Title I of the ADA by Defendant, Dove Tree

Plaintiff's Original Complaint

Page 2

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Apartments. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. At all relevant times, Felix Castro has been and is a qualified person with a disability
and is covered by Title I of the ADA, 42 U.S.C. §§ 12101 et seq. 9. Defendant, Dove Tree Apartments, has engaged in unlawful employment practices
at its San Antonio, Texas location, in violation of Title I of the ADA, 42 U.S.C. §§ 12101 et seq. These practices include the following:
a. Failing to provide medical leave to Mr. Castro past June 1, 2002, as a reasonable accommodation, following the amputation of Mr. Castro's leg below the knee on May 24, 2002 resulting from his Type I diabetes;
b. Terminating Mr. Castro from his maintenance technician position because of his disability; and
c. Failing to return Mr. Castro to his position or a comparable position and/or rehire Mr. Castro when he provided a full medical release to Defendant on July 25, 2002.
10. The effect of the practices complained of in paragraph 9 above has been to deprive Mr. Castro of equal employment opportunities and to otherwise adversely affect his status as an employee because of his disability.
11. The unlawful employment practices complained of in paragraph 9 above were intentional.
12. The unlawful employment practices complained of in paragraph 9 above were done with malice or with reckless indifference to the federally protected rights of Felix Castro.
PRAYER FOR RELIEF

Plaintiff's Original Complaint

Page 3

• •

Wherefore, the Commission respectfully requests that this Court:

A. Grant a permanent injunction enjoining Defendant, Dove Tree Apartments, its

officers, successors, assigns, and all persons in active concert or participation with it, from

discriminating against any qualified employees, because of their disabilities, by failing to provide

reasonable accommodations; by terminating qualified individuals because of their disability; by

failing to rehire qualified employees because of their disabilities; and engaging in any other

employment practice which discriminates on the basis of disability;

B. Order Defendant, Dove Tree Apartments, to institute and carry out policies, practices,

and programs which provide equal employment opportunities for qualified individuals with

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

including but not limited to posting notices regarding its compliance with the ADA;

C. Order Defendant, Dove Tree Apartments, to make whole Felix Castro byproviding

appropriate back pay with prejudgment interest, in amounts to be detennined at trial, and other

affirmative relief necessary to eradicate the effects of its unlawful employment practices, including

but not limited to reinstatement of Felix Castro, or front pay in lieu thereof;

D. Order Defendant, Dove Tree Apartments, to make whole Felix Castro by providing

compensation for past and future pecuniary losses resulting from the unlawful employment practices

described in paragraph 9, including, but not limited to, relocation expenses, job search expenses, and

medical expenses, in amounts to be determined at trial;

E. Order Defendant, Dove Tree Apartments, to make whole Felix Castro by providing

compensation for past and future non-pecuniary losses resulting from the unlawful practices

complained of in paragraph 9 above, including, but not limited to, emotional pain, suffering,

inconvenience, loss of enj oyment of life, and humiliation, in amounts to be determined at trial;

Plaintiff's Original Complaint

Page 4

• •
F. Order Defendant, Dove Tree Apartments, to pay Felix Castro punitive damages for
its malicious and reckless conduct, as described in paragraph 9 above, in amounts to be determined at trial;
G. Grant such further relief as the Court deems necessary and proper in the public
interest; and
H. Award the Commission its costs.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully submitted,
ERIC S. DREffiAND General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
Rn~t:>j~
ROBERTB. HARWIN Regional Attorney District of Columbia Bar No. 076083

Plaintiff's Original Complaint

Page 5

•
DAVID C. RNELA Attorney-in-Charge Texas State Bar No. 00797324
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Antonio District Office 5410 Fredericksburg Rd., Ste 200 San Antonio, TX 78229-3555 Telephone: (210) 281-7619 Telecopier: (210) 281-7669
ATTORNEYS FOR PLAINTIFF

Plaintiff's Original Complaint

Page 6

 
 • •

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

FILED

SAN ANTONIO DIVISION

MAR" 2 2005

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.

§

CLERf( WEST

§

ay ____~~~~~-

§

§

§

§ Civil Action No. SA04CA00656

§

NFl MANAGEMENT, INC., D/B/A HOME §

MANAGEMENT, INC., ALSO D/B/A

§

DOVE TREE APARTMENTS,

§

§

Defendant.

§

§

FINAL JUDGMENT ORDER ENTERING CONSENT DECREE

On this day came on to be heard the parties' Joint Motion to Enter Consent Decree. After

reviewing the Consent Decree, the Court finds that all issues in the Complaint have been disposed

of, that the parties are in agreement, and that the Consent Decree should be entered.

It is therefore ordered that the Consent Decree is hereby entered. The Court shall retain

jurisdiction to enforce the terms and conditions as set forth in the Consent Decree, which is attached

to the parties' Joint Motion to Enter Consent Decree.

1 ~ ~ Signed this day of

,2005.

HONORABLEORLANDOGARC~
UNITED STATES DISTRICT JUDGE

• •

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

FILED

SAN ANTONIO DIVISION

MAR" 2 2005

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

§

CLERK, U WESTERN 1;;a.,.I", 1,""'r..,..tI'
BY ____~~~~~_

Plaintiff,

§

§

v.

§ Civil Action No. SA04CA00656

§

NFl MANAGEMENT, INC., D/B/A HOME §

MANAGEMENT, INC., ALSO D/B/A

§

DOVE TREE APARTMENTS,

§

§

Defendant.

§

§

CONSENT DECREE

The parties to this Consent Decree are the Plaintiff, United States Equal Employment

Opportunity ("EEOC"), and Defendant NFl Management, Inc., d/b/a Horne Management, Inc., also

d/b/a Dove Tree Apartments. This Consent Decree resolves the allegations raised by the EEOC in

the above-referenced Civil Action No. SA04CA00656. The EEOC initiated this lawsuit under Title

I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991

("ADA"), to correct alleged unlawful employment practices on the basis ofdisability and to provide

appropriate relief to Defendant's former employee, Felix Castro, who was allegedly adversely

affected by such practices. The EEOC alleged that Defendant, NFl Management, Inc., d/b/a Horne

Management, Inc., also d/b/a Dove Tree Apartments, (hereinafter collectively referred to as "NFl

Management, Inc."), failed to provide Felix Castro with a reasonable accommodation; it terminated

him from his position ofmaintenance technician because ofhis disability; and it failed to return Mr.

Castro to his position or a comparable position and/or rehire Mr. Castro because of his disability.

The EEOC and NFl Management, Inc. wish to settle this Action, without the risks,

• •
uncertainties and expenses of continued litigation, under the terms in the Decree. IT IS ORDERED, ADJUDGED AND DECREED as follows: 1. This Court has jurisdiction ofthe subj ect matter ofthis action and the parties, venue
is proper, and all administrative prerequisites to the filing of this action have been met. The complaint states claims, which, if proved, would authorize this Court to grant relief against NFl Management, Inc., pursuant to the ADA.
2. This Decree resolves all issues raised in EEOC's complaint in this case. EEOC waives further litigation of all issues raised in the above referenced complaint. EEOC expressly reserves its right, however, to process and litigate any other charges which may now be pending or may in the future be filed against NFl Management, Inc.
SCOPE OF CONSENT DECREE 3. The duration ofthis Decree shall be two (2) years from the date of its filing with the Court. This Court shall retain jurisdiction of this action during the period of this Decree and may enter further orders or modifications as may be appropriate. Should any disputes under this Decree remain unresolved after this two-year period, the term ofthe Decree shall be automatically extended, and the Court will retain jurisdiction of this matter to enforce the Consent Decree, until such time as all disputes have been resolved. The terms of the Consent Decree shall apply only to NFl Management, Inc. 's operations in the State of Texas.
INJUNCTIVE PROVISIONS 4. During the term ofthis Consent Decree, NFl Management, Inc., its officers, agents, representatives, successors and other persons in active concert or participation with it, or any of them, are enjoined from discriminating against any qualified employees, because oftheir disabilities, by failing to provide reasonable accommodations; by terminating qualified individuals because of
Page 2

• •
their disability; by failing to rehire qualified employees because oftheir disabilities; and by engaging in any other employment practice which unlawfully discriminates on the basis of disability.
MONETARY RELIEF 5. NFl Management, Inc., in settlement of this dispute, shall pay to Felix Castro, the amount of$22,500.00 (twenty-two thousand and five hundred dollars and no cents). Payment shall be made by NFl Management, Inc. or its agent within eleven (11) days of the date this Decree is entered by the Court. Payment shall be by check made payable to Felix Castro, 8727 Huebner Road, Apt. 715, San Antonio, Texas 78240. A copy of all the settlement checks, and any accompanying transmittal documents shall be forwarded by fax to (210) 281-7669, to the attention of Robert B. Harwin, Regional Attorney, San Antonio District Office, United States Equal Employment Opportunity Commission, 5410 Fredericksburg Road, Suite 200, San Antonio, Texas 78229.
TRAINING 6. Within one hundred and twenty (120) days from the entry ofthis Consent Decree, NFl Management, Inc. will provide four (3) hours oftraining to its managerial employees at all of NFl Management, Inc. 's operations in the State ofTexas, according to the following terms on the subject ofthe employment provisions under the ADA policy, regarding the Americans With Disabilities Act, including the Act's confidentiality provisions. 7. Within eleven (11) days after the completion of the training session, NFl Management, Inc. shall certify to EEOC, in writing, that the required training has taken place and that required personnel attended. Such certification shall include:
A. The date, location and duration of the training; and B. A copy of the registry of attendance which shall include the name and
position or title of each person in attendance.
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POSTING REOUIREMENT 8. Within eleven (11) business days after entry of this Consent Decree, NFl Management, Inc. shall post copies ofthe Notice attached as Exhibit "A" to this Decree at all of its operations in the State of Texas in conspicuous locations easily accessible to and commonly frequented by employees. The Notice shall remain posted for the duration of this Decree. NFl Management, Inc. shall ensure that the Notice is not altered, defaced or covered by any other material. NFl Management, Inc. shall certify to the EEOC in writing within eleven (11) business days after entry of the Decree that the Notice has been properly posted.
MISCELLANEOUS PROVISIONS 9. NFl Management, Inc. shall bear the costs it incurs in administering and implementing the provisions ofthis Decree. 10. Except as provided herein, the parties to this Decree shall bear their own costs and attorney's fees. 11. The terms ofthis Decree are and shall be binding upon the present and future officers ofNFl Management, Inc. in their representative capacity and upon the successors and assigns ofNFl Management, Inc. 12. When this Consent Decree requires the submission by NFl Management, Inc. of documents or other materials to EEOC, such documents or other materials shall be mailed to Robert B. Harwin, Regional Attorney, 5410 Fredericksburg Road, Suite 200, San Antonio, Texas 78229. The Clerk shall furnish a copy hereof to each attorney of record. SO ORDERED AND ENTERED this _ _ day of _ _ _ _ _ _ _, 2005.
HONORABLE ORLANDO GARCIA UNITED STATES DISTRICT JUDGE
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Respectfully Submitted,
ERIC S. DREIBAND General Counsel
JAMES 1. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

LAWRENCE D. SMITH Texas State Bar No. 18638800
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2600 Weston Centre 112 E. Pecan Street San Antonio, Texas 78250 Telephone: (210) 354-1300 Telecopier: (210) 277-2702

ROBERT B. HARWIN Regional Attorney District of Columbia Bar No. 076083
~~1f1rb~~
Supervisory Trial Attorney Texas State Bar No. 19708300

DAVID C. RlVELA Trial Attorney Texas State Bar No. 00797324

SPENCER FANE BRITT & BROWN LLP EQUAL EMPLOYMENT OPPORTUNITY

9401 Indian Creek Parkway, Suite 700

COMMISSION

Overland Park, Kansas 66210-2005

San Antonio District Office

Telephone: (913)345-8100

5410 Fredericksburg Rd., Ste 200

Telecopier: (913)345-0736

San Antonio, TX 78229-3555

Telephone: (210) 281-7619

Telecopier: (210) 281-7669

ATTORNEYS FOR DEFENDANT

ATTORNEYS FOR PLAINTIFF

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EXHIBIT A
NOTICE
1. This NOTICE to all employees of NFl Management, Inc., d/b/a Home Management, Inc., also d/b/a Dove Tree Apartments (NFl Management, Inc.) is being posted as part of an agreement between NFl Management, Inc. and the U.S. Equal Employment Opportunity Commission.
2. The Americans with Disabilities Act (ADA) prohibits a covered employer from discriminating against a qualified individual with a disability because ofhis or her disability in regard to job application procedures, hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment, and from discriminating against a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association. It is unlawful for an employer to deny employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability based on the need ofsuch covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.
3. NFl Management, Inc. strongly supports and will complywith such Federallaw in all aspects and it will not take any action against employees because they have exercised their rights under the law by filing charges with the U.S. Equal Employment Opportunity Commission.
4. If you believe you are being discriminated against in any ternl or condition of your employment because of your disability, you are encouraged to seek assistance from supervisory personnel, or from the U. S. Equal Employment Opportunity Commission, 5410 Fredericksburg Road, Suite 200, San Antonio, Texas 78229-3555, (210) 281-7600 or 1-800669-4000.
5. No retaliatory action may be taken against you for seeking assistance, filing a charge, or communicating with the U.S. Equal Employment Opportunity Commission.
6. This NOTICE will remain posted until 2/28/07 , by agreement of the U.S. Equal Employment Opportunity Commission and NFl Management, Inc.

 
 CM/ECF LIVE - U.S. District Court:txwd - Docket Report

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U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:04-cv-00656-OLG

CLOSED, NSN

Equal Employment v. NFI Management, Inc. Assigned to: Honorable Orlando L. Garcia Demand: $0 Cause: 42:12101 Americans with Disabilities Act of 1990

Date Filed: 07/26/2004 Date Terminated: 03/02/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by David C. Rivela EEOC San Antonio District Office 5410 Fredericksburg Rd. Suite 200 San Antonio, TX 78229 (210) 281-7619 Email: david.rivela@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith G. Taylor U.S. EEOC San Antonio District Office 5410 Fredricksburg Rd. Suite 200 San Antonio, TX 78229-3555 (210) 281-7673 Fax: 210/281-7669 Email: judith.taylor@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. Harwin Equal Employment Opportunity Commission San Antonio District Office 5410 Fredericksburg Road Suite 200 San Antonio, TX 78229-3555 (210) 281-7643 Fax: (210) 281-7669 Email: robert.harwin@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V.
Defendant
NFI Management, Inc. doing business as Home Management, Inc. doing business as Dove Tree Apartments

represented by Jeffrey M. Place Spencer, Fane, Britt & Browne, LLP 9401 Indian Creek Parkway, Suite 700 Overland Park, KS 66201-2005 (913) 345-8100 Fax: (913) 345-0736 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence D. Smith Ogletree Deakins Nash Smoak & Stewart, PC 2600 Weston Centre 112 East Pecan St. San Antonio, TX 78205 (210) 354-1300 Fax: (210) 277-2702 Email: Larry.Smith@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley E. Craven Spencer, Fane, Etal Suite 700, 40 Corporate Woods 9401 Indian Creek Parkway Overland Park, KS 66210-2005 (913) 345-8100 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed
07/26/2004 07/26/2004
07/26/2004 07/26/2004
07/26/2004 09/03/2004

#

Docket Text

Case assigned to Honorable Orlando L. Garcia (ep) (Entered: 07/27/2004)
If ordered by the court, all referrals will be assigned to Magistrate Judge Nowak (ep) (Entered: 07/27/2004)
1 Complaint filed. (Pages: 6) (ep) (Entered: 07/27/2004)
2 Demand for jury trial by Equal Employment Opportunity Commission (ep) (Entered: 07/27/2004)
Summons issued for NFI Management, Inc. (ep) (Entered: 07/27/2004)
3 Waiver of Service by NFI Management, Inc. ; Notice and Request Mailed on 8/4/04 ; Answer due on 10/4/04 for NFI Management, Inc. (rg1) (Entered: 09/07/2004)

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09/20/2004 09/20/2004 09/22/2004
09/27/2004 10/15/2004 11/23/2004 11/23/2004 12/03/2004 12/08/2004 12/08/2004
12/21/2004 12/28/2004
12/28/2004 12/28/2004 01/31/2005 02/22/2005 02/28/2005 03/02/2005

4 Joint proposed Recommendations for scheduling order by Equal Employment, NFI Management, Inc. (lp) (Entered: 09/21/2004)
5 Notice of filing Joint Rule 26 (f) report by Equal Employment, NFI Management, Inc. (lp) (Entered: 09/21/2004)
6 Scheduling order setting Joining of parties, amending of pleadings on 2/22/05 Deadline for filing of all motions 5/9/05 Discovery cutoff 4/4/05 ; Alternate Dispute Resolution Report due by 1/3/05 ; Jury Selection set for 9:30 9/12/05 ; Jury trial set for 9:30 9/12/05 , termed motions signed by Honorable Orlando L. Garcia (lp) (Entered: 09/23/2004)
7 Non-consent to proceed before a U.S. Magistrate by Equal Employment (rg1) (Entered: 09/28/2004)
8 Non-consent to proceed before a U.S. Magistrate by Equal Employment (tm) (Entered: 10/18/2004)
9 Motion by Equal Employment for clerk to enter default as to NFI Management, Inc. (tm) (Entered: 11/29/2004)
10 Clerk's entry of default as to NFI Management, Inc. motion for clerk to enter default as to NFI Management, Inc. [9-1] (tm) (Entered: 11/29/2004)
11 Alternate Dispute Resolution Report filed by Equal Employment, Party(s) agree to Alternate Dispute Resolution (rg1) (Entered: 12/06/2004)
12 Motion by NFI Management, Inc. for Jeffrey Place to appear pro hac vice (rg1) (Entered: 12/08/2004)
13 Motion by NFI Management, Inc. to set aside entry of default and to permit dft to file its answer out of time (answer marked received and attached to motion) (rg1) (Entered: 12/08/2004)
14 Order granting motion for Jeffrey Place to appear pro hac vice [12-1] signed by Honorable Orlando L. Garcia (sj) (Entered: 12/21/2004)
15 Order granting motion to set aside entry of default and to permit dft to file its answer out of time [13-1] signed by Honorable Orlando L. Garcia (tm) (Entered: 12/29/2004)
16 Motion by Equal Employment for default judgment against NFI Management, Inc. (tm) Modified on 03/02/2005 (Entered: 12/29/2004)
17 Answer by NFI Management, Inc. (tm) (Entered: 12/29/2004)
18 Disclosure/Designation of expert witnesses filed by Equal Employment (sj) (Entered: 02/01/2005)
19 Notice by Equal Employment of settlement (tm) (Entered: 02/24/2005)
20 Joint motion by Equal Employment, NFI Management, Inc. to enter consent decree (tm) (Entered: 03/01/2005)
Terminated motion for default judgment against NFI Management, Inc. [16-1]; perorder doc.# 15. (mj) (Entered: 03/02/2005)

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03/02/2005 03/02/2005

21 Final Judgment order entering consent decree signed by Honorable Orlando L. Garcia (tm) (Entered: 03/03/2005)
Case closed (tm) (Entered: 03/03/2005)

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