Case 5:02-cv-00703-H Document 1 Filed 09/27/2002 Page 1 of 5

FI lE 0

IN THE UNITED STATES DISTRICT COURT

.~:E~ 2 ~. ?,,!)?

Ol!9 FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION

DAVID W. US

DACNbEJR¥.~~~

BY

_ DEP. ClERK

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

NEW HANOVER REGIONAL MEDICAL CTR., )

)

Defendant.

)

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

CIVIL ACTION NO. S ~ C:.l _C~ ~ lG3
\\,3
COMPLAINT
JURY TRIAL DEMAND

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964 ("Title VII") and Title I

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

retaliation and to provide appropriate relief to Kently J. Hall ("Hall"), who was adversely

affected by such practices. The Commission alleges that Defendant disciplined, demoted and

discharged Hall because of his race, African-American. The Commission further alleges that

Defendant retaliated against Hall after Hall complained of the racial discrimination.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.c. §§ 451, 1331, 1337,

1343 and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and (3) of

Title VII, 42 U.S.C.§§ 2000e-5(f)(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 Eastern District of North Carolina.

,
SCANNED

Case 5:02-cv-00703-H Document 1 Filed 09/27/2002 Page 2 of 5
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Sections 706(f)(1) and (3) of Title VII, 42 US.C. §§ 2000e-5(t)(I) and (3). 4. At all relevant times, Defendant, New Hanover Regional Medical Center (the "Employer"), has continuously been a North Carolina corporation doing business in the State of North Carolina and the City of Wilmington, and has continuously had at least 15 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) of Title VII, 42 US.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Hall filed charges with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. From at least January 1998 until September 9, 1998, Defendant Employer engaged in unlawful employment practices at its Wilmington, North Carolina facility, in violation of Title VII. Specifically, Defendant Employer: (a) disciplined, demoted and discharged Hall because of his race, African-American, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1); and (b) discharged Hall because he complained of the discriminatory treatment, in violation of Section 704(a) of Title VII, 42 US.C. §2000e-3(a). 8. The effect of the practices complained of in paragraph 7 above has been to
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Case 5:02-cv-00703-H Document 1 Filed 09/27/2002 Page 3 of 5
deprive Hall of equal employment opportunities and otherwise adversely affect his status as an employee because of his race and his opposition to practices made illegal by Title VII.
9. The unlawful employment practices complained of in paragraph 7 above were intentional.
10. The unlawful employment practices complained of in paragraph 7 above were done with malice or with reckless indifference to the federally protected rights of Hall.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in racial discrimination and from engaging in retaliation against employees because they have opposed employment practices made unlawful under Title VII or otherwise engaged in protected activity under Title VII. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for African-American employees, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Kently J. Hall, by providing appropriate back pay with pre-judgment interest, in an amount to be determined at trial, and other appropriate affirmative relief necessary to eradicate the effects of its unlawful employment practices, including reinstatement or front pay. D. Order Defendant Employer to make whole Kently J. Hall, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 7 above, in an amount to be determined at trial.
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E. Order Defendant Employer to make whole Kently J. Hall, by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including but not limited to emotional pain, suffering, inconvenience, loss of enjoyment of life, loss of civil rights, and humiliation, in an amount to be determined at trial.
F. Order Defendant Employer to pay Kently J. Hall punitive damages for its malicious and reckless conduct, as described in paragraph 7 above, in an amount to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action. JURy TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint. Dated this __ day of September, 2002.
GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 1801 "L" Street, N.W. Washington, D.C. 20507
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
129 West Trade Street Suite 400 Charlotte, NC 28202 (704) 344-6886
5

 
 Case 5:02-cv-00703-H Document 10 Filed 08/05/2003 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

NEW HANOVER REGIONAL

)

MEDICAL CENTER,

)

)

Defendant.

)

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

CIVIL ACTION NO. 5:02CV703-H(3) CONSENT DECREE

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

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

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

Rights Act of 1991,42 U.S.C. § 1981a. The Commission's Complaint alleges Defendant New

Hanover Regional Medical Center ("Defendant") discriminated against Kently J. Hall by

disciplining, demoting and discharging Mr. Hall because of his race, African American. The

Commission's Complaint further alleges that when Kently J. Hall complained of discriminatory

treatment, Defendant retaliated against him by discharging him from employment. Defendant

denies all of the allegations raised in the Commission's Complaint.

The Commission and the Defendant hereby stipulate to jurisdiction of the Court over the

parties and agree that the subject matter of this action is properly before the Court.

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

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

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

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

Case 5:02-cv-00703-H Document 10 Filed 08/05/2003 Page 2 of 8
purpose and provisions of Title VII will be promoted and effectuated by the entry of the Consent Decree; and (3) this Decree resolves all matters in controversy between the parties as provided in paragraphs 1 through 15 below.
It is therefore ORDERED, ADJUDGED AND DECREED as follows: 1. Defendant shall not discriminate against individuals on the basis of race within the meaning of Title VII of the Civil Rights Act of 1964, and specifically shall not discipline, demote or discharge individuals because of their race. 2. Defendant shall not discriminate or retaliate against any person because of opposition to any practice made unlawful under Title VII, or because of the filing of a charge, the giving of testimony or assistance, or the participation in any investigation, proceeding or hearing under the foregoing statute. 3. Defendant shall pay Kently J. Hall the sum of$7,500. Defendant shall make payment by issuing a check jointly payable to Kently J. Hall and Ruchadina L. Waddell, Esq. Payment shall be made within ten (10) days after the Court enters this Consent Decree. Defendant shall mail the check to Ruchadina L. Waddell, Esq., 321 North Front Street, Wilimington, NC 28401-3908. Within ten (10) days after the check has been sent to Ms. Waddell, Defendant shall mail to Mindy E. Weinstein, Regional Attorney, Equal Employment Opportunity Commission, 129 West Trade Street, Suite 400, Charlotte, NC 28202, a copy of the check and proof of its delivery to Ms. Waddell. 4. Defendant agrees to eliminate from the employment records ofKently 1. Hall any and all documents relating to the EEOC charge of discrimination filed by Mr. Hall, including all post charge documents. 5. Defendant agrees to provide Kently J. Hall with a neutral letter of employment reference, a copy of which is attached hereto. Additionally, if Defendant receives any inquiries
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Case 5:02-cv-00703-H Document 10 Filed 08/05/2003 Page 3 of 8
regarding the employment of Mr. Hall, it shall provide a neutral employment reference. 6. Defendant has adopted, implemented and distributed a formal, written anti-
discrimination and anti-harassment policy, which includes an explanation of the requirements of the federal equal employment opportunity laws, including Title VII of the Civil Rights Act of 1964 and its prohibition against racial discrimination in the workplace. During the terms of this Decree, Defendant shall distribute the policy to all new employees at the time of hire.
7. During the term of this Decree, Defendant shall implement an annual training program on Title VII and each training program shall include an explanation of the requirements of the federal equal employment opportunity laws, including Title VII of the Civil Rights Act of 1964, its prohibition against racial discrimination in the workplace, and retaliation. Each training program shall also cover Defendant's anti-discrimination and anti-harassment policy, and an explanation of the rights and responsibilities of managers and employees under the policy.
The annual training program shall be conducted as follows: (A) Defendant shall arrange for the New Hanover Human Rights Commission to
provide an annual training program for all of Defendant's managers (approximately 200) ("manager training"). Defendant shall keep a roster of all employees that attend the manager training. (B) After attending the manager training, Defendant's managers shall train their subordinate employees at departmental meetings ("employee training") on the topics covered in the manager training. Defendant shall keep: (i) a roster of all employees attending the employee training; and (ii) minutes for each employee training session. Defendant shall also ensure that any employee that misses employee training reads the minutes of the meeting and verifies, in writing, that they have done so.
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Case 5:02-cv-00703-H Document 10 Filed 08/05/2003 Page 4 of 8
(C) No later than 45 days after the manager and the employee training, Defendant shall certify to the Commission that both the manager and the employee training was undertaken. As part of the certification, Defendant shall provide the Commission with: (i) a copy of the attendance roster for the manager training; (ii) copies of the attendance rosters for the employee training; (iii) copies of the minutes of the employee training; and (iv) written verification from all employees that participated in the employee training by reading a copy of the minutes.
The first manager training program shall be completed within ninety (90) days after entry of the decree by the Court. Each employee training program shall be completed within 30 days after the completion of the manager training program. The subsequent training programs shall be scheduled such that the second employee training program shall be completed at least sixty (60) days prior to the expiration of the consent decree.
In the event that the New Hanover Human Rights Commission is unavailable to train Defendant's managers within the parameters outlined, then Defendant shall choose a comparable public agency or private organization to conduct the training. Defendant shall provide the Commission with the name, address and telephone number of the entity that conducted the manager training as part of the post-training certification referenced in subparagraph (C) of this section.
8. Defendant agrees to include training for all new employees on Title VII in new hire orientation and/or other appropriate forums, including training on Defendant's obligations under Title VII and employee rights under Title VII.
9. During the term of this Decree, Defendant shall conspicuously post the attached Employee Notice, marked Appendix A, hereby made a part of this Decree, in a place where it is visible to employees. If the Notice becomes defaced or umeadable, Defendant shall replace it by
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Case 5:02-cv-00703-H Document 10 Filed 08/05/2003 Page 5 of 8
posting another copy of the Notice. 10. Defendant agrees to provide the Commission with semi-annual reports during the
term of this Decree. The reports shall include the following information: the identities of all of Defendant's employees who have complained of or reported racial discrimination or retaliation, including by way of identification each person's name, home address, home telephone number, social security number, and race; a statement of the individual's complaint; and a description of what action was taken in response to the individual's complaint. Defendant shall submit the first report to the Commission four months after the date of entry of this Consent Decree and shall submit subsequent reports every six months thereafter during the term of this Decree. Defendant shall submit reports to the Commission pursuant to this schedule regardless of whether Defendant receives any complaints or reports of racial discrimination or retaliation.
11. Defendant agrees that the Commission may review compliance with this Decree. As part of such review, the Commission, upon reasonable notice, may inspect the premises, interview employees and examine and copy documents.
12. If at any time during the term of this Decree, the Commission believes that Defendant is in violation of this Decree, the Commission shall give written notice of the alleged violation to the respective Defendant. Defendant shall then have ten (10) days in which to investigate and respond to the allegations. Thereafter, the parties shall have a period often (10) days, or such additional period as may be agreed upon by them, in which to engage in negotiation and conciliation regarding such allegations, before the Commission exercises any remedy provided by law.
13. Except as otherwise provided herein, each party shall bear its own costs and fees. 14. The term of this Decree shall be for two (2) years from its entry by the Court. 15. This Court shall retain jurisdiction of this cause for purposes of monitoring
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Case 5:02-cv-00703-H
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Document 10

Filed 08/05/2003

Page 6 of 8

compliance with this Decree and entry of such further orders as may be necessary or appropriate.
/,r

Date t I

~ cf"
/ United States IStrict Judge

Eastern District of North C

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

This the ~ '2f'\~ day of

s

\ \ )L..L'

\I

\

2003:

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff

This the 3~ day of Jl,L\,\

2003:

\

~t(NC Bar NEW HANOVER REGIONAL MEDICAL CENTER, Defendant No..(I.nf? )
Kilpatrick Sto ton, LL 301 South College Street Suite 3500 Charlotte, NC 28202 704.338.5234 704.371-8280 (Facsimile) Attorney for Defendant

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Case 5:02-cv-00703-H Document 10 Filed 08/05/2003 Page 7 of 8

Notice to Employees
Federal law prohibits discrimination against any employee or because of the individual's race, national origin, sex, color, religion, age (40 and over) or disability with respect to hiring, promotion, discipline, firing, compensation, or other terms, conditions or privileges of employment.
New Hanover Regional Medical Center ("New Hanover") supports and will comply with such federal law in all respects and will not take action against employees because they have exercised their rights under the law. New Hanover will not discriminate against any employee because of his or her race.
New Hanover has adopted equal employment opportunity policies and shall ensure that all managers and supervisors, and all other employees abide by the requirements of its policies.
If you believe that you have been discriminated against based on your race, report the discriminatory conduct promptly to New Hanover or to the U.S. Equal Employment Opportunity Commission ("EEOC"). The EEOC can be contacted at 1.800.669.4000.
This Notice will remain posted for at least two (2) years pursuant to an agreement between New Hanover and the EEOC.
=D-=O"--",N,"""-,O=-T~RE~M=.;O=-V..!..-E~T",,,,,"H=I=-S-=-N~O~T~I-=C~E~U~N~T::o....::I~L=-:_ _ _ _ _, 2005.

Date

By:

for New Hanover Regional Medical Center,

its -----------------------------

Appendix A

Case 5:02-cv-00703-H Document 10 Filed 08/05/2003 Page 8 of 8
June 11, 2003 To Whom It May Concern: Mr. Kently 1. Hall employment began January 30, 1987 at New Hanover Regional Medical Center through September 10, 1998. Over the term of his employment at NHRMC, he was employed as a Security Officer, Special Police Officer, and Special Police Sergeant. Should you require additional information, please feel free to contact me. Sincerely,
/ /1 ~~~
/ Barbara K. Stumiolo Interim Vice President Human Resources BKS:cw

 
 CM/ECF - NCED - Docket Report

Page 1 of 3

CLOSED, Jury Trial, USMJ_Webb
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division)
CIVIL DOCKET FOR CASE #: 5:02-cv-00703-H

EEOC v. New Hanover Regional Assigned to: Judge Malcolm J. Howard Demand: $0 Cause: 42:2000 Job Discrimination (Race)
Plaintiff
Equal Employment Opportunity Commission

Date Filed: 09/27/2002 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Bobby C. Simpson EEOC/Charlotte District Office 129 W. Trade St. Suite 400 Charlotte, NC 28202 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy E. Weinstein E. E. O. C. 129 W. Trade St. Suite 400 Charlotte, NC 29202-2799 704-344-6886 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant New Hanover Regional

represented by Catharine Wildenthal Cummer Nelson Mullins Riley & Scarborough, LLP 4140 Parklake Ave., Suite 200 Raleigh, NC 27612 919-877-3805 Fax: 919-877-3825 Email: Catharine.Cummer@nelsonmullins.com
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marilyn E. Culp Littler Mendleson 100 North Tryon Street

https://ecf.nced.uscourts.gov/cgi-bin/DktRpt.pl?970017988656374-L_923_0-1

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Date Filed 09/27/2002 09/27/2002 09/27/2002 11/25/2002
11/27/2002
12/31/2002 12/31/2002
01/03/2003 02/12/2003 02/19/2003
02/21/2003
04/02/2003 04/08/2003

Suite 4150 Charlotte, NC 28202 704-972-7000 Fax: 333-4005 Email: mculp@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

#

Docket Text

1 Complaint filed under 42 USC 2000e alleging racial harassment and retaliation under Title VII. JURY DEMAND. (ll) (Entered: 10/02/2002)

No summons - Counsel prepared Waiver of Service of Summons Forms. (ll) (Entered: 10/02/2002)

(ll) (Entered: 10/02/2002)

2 Consent Motion by New Hanover Regional to extend time to respond to complaint through & including 12/31/02 . w/cs. Cy. to Clerk w/po. (ll) (Entered: 11/27/2002)

3 Order granting [2-1] motion to extend time to respond to complaint through & including 12/31/02, reset answer due for 12/31/02 for New Hanover Regional . signed by David W. Daniel, Clerk. Cys. served. (ll) (Entered: 11/27/2002)

4 Answer to Complaint by New Hanover Regional, cs. NO JURY DEMAND. (dh) (Entered: 01/03/2003)

5 Document filed by defendant New Hanover Regional titled: Disclosure of Corporate Affiliations and Other Entities With A Direct Financial Interest In Litigation, cs. (dh) (Entered: 01/03/2003)

6 Request for Discovery Plan: Discovery Plan due by 2/16/03 (dh) (Entered: 01/03/2003)

7 Discovery Plan filed by EEOC, New Hanover Regional (dh) (Entered: 02/19/2003)

Case submitted to: USMJ Webb [7-1] discovery submitted. CASE FILE TO USMJ WEBB FOR ENTRY OF SCHEDULING ORDER. (dh) (Entered: 02/19/2003)

8 Order on Scheduling by Magistrate William Webb setting Discovery cutoff 8/29/03; Deadline for filing of all motions 9/29/03; Jury Trial scheduled for <February 2004> before Judge Malcolm J. Howard. Cys. served. Cal. cy. (ll) (Entered: 02/21/2003)

Order setting trial date forthcoming. (dh) (Entered: 04/02/2003)

9 Order on Scheduling by Magistrate William A. Webb setting Jury Trial for 2/17/04 before Judge Malcolm J. Howard Place: G'ville. ccys served.

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08/04/2003 08/05/2003
08/05/2003 08/07/2003

calendar copy. (dh) (Entered: 04/09/2003)
Consent Decree to Judge Howard for consideration. (dh) (Entered: 08/04/2003)
10 Consent Decree for EEOC against New Hanover Regional (see Consent Decree for details) signed by Malcolm J. Howard, US Judge. ccys served. (dh) (Entered: 08/05/2003)
Case closed. Non-Permanent. (dh) (Entered: 08/05/2003)
11 Document filed by plaintiff EEOC titled: "Notice of Substitution of Counsel" - Bobby C Simpson is substituting Mindy E. Weinstein, Regional Attorney as counsel for the plaintiff. cy to Carol. (dh) (Entered: 08/11/2003)

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 Page 1 of 1
An employer never has to remove an essential function as an accommodation but, absent undue hardship, must provide a reasonable accommodation that would permit an employee to perform an essential function. Therefore, in example 9 above, if the hospital cannot eliminate the delivery function but another reasonable accommodation exists that would not result in undue hardship, such as a mobility device with carrying baskets for the technician to use within the hospital, the hospital must provide the alternative accommodation.
EXAMPLE 10 Employee Able to Perform Essential Function
An applicant for a hospital patient access technician has paraplegia and uses a wheelchair. The position requires greeting patients and their families, obtaining patient data and entering it into the computer, and moving patients who may be in wheelchairs to their next location, as well as moving back and forth among rooms to check the status of patients. The applicant will be considered qualified for the position if she has the requisite education, experience, and skills, and has the ability to push others in wheelchairs satisfactorily and safely even though she uses a wheelchair herself.[24]

http://www.eeoc.gov/facts/health_care_workers.html

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[24] The facts in this example are based on a lawsuit filed by EEOC and voluntarily settled February 6, 2006, prior to a decision by a judge or jury (EEOC v. New Hanover Regional Medical Center, Civil Action No. 7:05-CV-180-D(2)). See also Stafne v. Unicare Homes, 266 F.3d 771 (8th Cir. 2001) (disagreement between majority and dissenting opinions regarding whether pushing wheelchairs was an essential function of a nursing home nurse position, and if so whether nurse could have performed this function if provided a motorized cart as an accommodation).

http://www.eeoc.gov/facts/health_care_workers.html

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