)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES EQUAL EMPLOYMENT )

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

)

v.

)

)

CON-WAY TRANSPORTATION SERVICES, )

INC. d/b/a CON-WAY SOUTHERN EXPRESS )

)

)

Defendants.

)

)

CIVIL ACTION NO. COMPLAINT
JURY TRIAL DEMANDED INJUNCTIVE RELIEF SOUGHT

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of national origin, and to provide appropriate relief to Juan Fonseca, Hector Cepeda, and Yuly Enriquez who were adversely affected by such practices. As stated with greater particularity in paragraph 7, the United States Equal Employment Opportunity Commission (hereinafter the "EEOC" or "Commission") alleges that Juan Fonseca, Hector Cepeda, and Yuly Enriquez were subjected to a hostile work environment by supervisors and coworkers because of their national origin, Cuban.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,1343and 1345. This action is authorized and instituted pursuant to Section 706(0(1) and (3)of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A.
d

2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Middle District of Florida, Tampa Division.
PARTIES 3. Plaintiff, the United States Equal Employment Opportunity Commission, is the agency of the United States of America charged with the administratiorl, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant, Con-Way Transportation Services, Inc. d/b/a ConWay Southern Express (the "Employer"), has continuously been a Michigan Corporation doing business in the State of Florida and the City of Tampa, 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 within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Juan Fonseca, Hector Cepeda, and Yuly Enriquez filed a charge with the Commission alleging a violation of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least November 2001, Defendant Employer has engaged in unlawful employment practices at its Tampa, Florida facility, in violation of Section 703(a)(1), 42 U.S.C. § 2000e-2(a) by subjecting Hispanic employees to a hostile work environment. Specifically, employees Juan Fonseca, Hector Cepeda, and Yuly Enriquez were subjected to unwelcome
2

comments based on their national origin by supervisors and coworkers which were sufficiently severe and pervasive to constitute an intimidating, hostile and offensive work environment. The offensive conduct included, but was not limited to Juan Fonseca, Hector Cepeda, and Yuly Enriquez: (a) being called ethnically offensive names, including fucking Mexicans and Ecuadorians; (b) being mocked and the subject of offensive jokes about their native accent; and (c) being repeatedly told that they did not belong in the United States and should go back to Mexico or Cuba where they belonged.
8. The Defendant knew or should have known of the harassment and failed to take prompt and appropriate remedial action to remedy the hostile environment.
9. The effect of the practice(s) complained of in paragraph 7 above have been to deprive Juan Fonseca, Hector Cepeda, and Yuly Enriquez of equal employment opportunities and otherwise adversely affect their status as employees because of their national origin.
10. The unlawful employment practices complained of in paragraph 7 above were intentional.
ll. The unlawful employment practices complained of in paragraph 7 above were done with malice or with reckless indifference to the federally protected fights of Juan Fonseca, Hector Cepeda, and Yuly Enriquez.
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 unlawful harassment and any other employment practice which discriminates on the basis of national origin.
3

B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for all its employees regardless of national origin

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

C. Order Defendant Employer to make whole Juan Fonseca, Hector Cepeda, and Yuly

Enriquez by providing compensation for past and future pecuniary losses resulting from the unlawful

employment practices described in paragraph 7 above, including but not limited to, out of pocket

losses, and medical expenses, in amounts to be determined at trial.

D. Order Defendant Employer to make whole Juan Fonseca, Hector Cepeda, and Yuly

Enriquez 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, and humiliation, in amounts to be determined

at trial.

E. Order Defendant Employer to pay Juan Fonseca, Hector Cepeda, and Yuly Enriquez

punitive damages for its malicious and reckless conduct described in paragraph 7 above, in amounts

to be determined at trial.

Fo

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

interest.

G. 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.

Respectfully submitted, 4

ERIC S. DREIBAND General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
DELNER FRANKLIN THOMAS Regional Attorney
CARLA VON GREIFF Senior Trial Attorney Florida Bar No. 0110566 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Tampa Area Office 501 East Polk Street, Suite 1000 Tampa, Florida 33602 Telephone: (813) 228-2020 Facsimile: (813) 228-2841

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

FILEI )

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-Date

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CLERK, U.5. ~TRICT~..~URT

I~DDLE D,~$’IPdCT OF YAMPA, FLORIDA

Plaintiff,

CASE NO.: 8:0~-CV-2043-T-27TGW

and

JUAN C. FONSECA, YULY VAZQUEZ-ENRIQUEZ and HECTOR CEPEDA,

Plaintiff-Intervenors,
V.

CON-WAY TRANSPORTATION SERVICES, INC.,

Defendant.

COMPLAINT Plaintiffs, UNITED STATES EQUAL OPPORTUNITY COMMISSION ("EEOC" or "COMMISSION") JUAN C. FONSECA, YULY VAZQUEZ-ENRIQUEZ and HECTOR CEPEDA, sue Defendant, CON-WAY TRANSPORTATION SERVICES, INC. dba CON-WAY SOUTHERN EXPRESS, and state as follows:
COUNT I - EEOC ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of natural origin, and to provide appropriate relief to Juan Fonseca, Hector Cepeda, and Yuly Enriquez who were adversely affected by such practices. As stated with greater particularity in paragraph 7, the United States Equal Employment Opportunity Commission (hereinafter the "EEOC" or "Commission") alleges that Juan Fonseca, Hector Cepeda and Yuly Enriquez were subjected to a

hostile work environment by supervisors and coworkers because of their national origin, Cuban.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(0(1) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A.

2. The employment practices alleged to be unlawful were committed within the

jurisdiction of the United States District Court for the Middle District of Florida, Tampa

Division. 3.

PARTIES Plaintiff, the United States Equal Employment Opportunity Commission is the

agency of the United States of America charged with the administration interpretation and

enforcement of Title VII, and id expressly authorized to bring this action by Section 706(0(1)

and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant, Con-Way Transportation Services, Inc. d/b/a
Con-Way Southern Express (the "Employer"), has continuously been a Michigan Corporation doing business in the State of Florida and the City of Tampa, and has continuously had at least fifteen (15) employees.

5. At all relevant times, Defendant Employer has continuously been an employer

engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000eCo), (g) and (h).

STATEMENT OF CLAIMS

6. More than thirty (30) days prior to the institution of this lawsuit, Juan Fonseca, Hector Cepeda, and Yuly Enriquez filed a charge with the Commission alleging a violation of Title VII by Defendant Employer. All conditions precedent to the institution of the lawsuit have

been fulfilled.

7. Since at least November 2001, Defendant Employer has engaged in lawful

employment practices at its Tampa, Florida facility, in violation of Section 703(a)(1), 42 U.S.C.

§ 2000e-2(a) by subjecting Hispanic employees to a hostile work environment. Specifically,

employees Juan Fonseca, Hector Cepeda and Yuly Enriquez were subjected to unwelcome

comments based on their national origin by supervisors and coworkers which were sufficiently

severe and pervasive to constitute an intimidating, hostile and offensive work environment. The

offensive conduct included, but was not limited to Juan Fonseca, Hector Cepeda, and Yuly

Enriquez; (a) being called ethnically offensive names, including fucking Mexicans and

Ecuadorians; (b) being mocked and the subject of offensive jokes about their native accent; and

(c) being repeatedly told that they did not belong in the United States and should go back to

Mexico or Cuba where they belonged.

8. The Defendant knew or should have known of the harassment and failed to take

prompt and appropriate remedial action to remedy the hostile environment.

9. The effect of the practice(s) complained of in paragraph 7 above have been to

deprive Juan Fonseca, Hector Cepeda and Yuly Enriquez of equal employment opportunities and

otherwise adversely affect their status as employees because of their national origin.

10. The unlawful employment practices complained of in paragraph 7 above were

intentional.

11. The unlawful employment practices complained of in paragraph 7 above were

done with malice or with reckless indifference to the federally protected right so Juan Fonseca,

Hector Cepeda and Yuly Enriquez.

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

unlawful harassment and any other employment practice which discriminates on the basis of

national origin. B. Order Defendant Employer to institute and carry out policies, practices, and
programs which provide equal employment opportunities for all its employees regardless of national origin and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant Employer to make whole Juan Fonseca, Hector Cepada and Yuly Enriquez by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 7 above, including, but not limited to, out of pocket losses, and medical expenses, in amounts to be determined at trial.
D. Order Defendant Employer to make whole Juan Fonseca, Hector Cepeda, and Yuly Enriquez 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, and humiliation, in amounts to be determined at trial.
E. Order Defendant Employer to pay Juan Fonseca, Hector Cepeda, and Yuly Enriquez punitive damages for its malicious and reckless conduct described in paragraph 7 above, in amounts to be determined at trial.
Fo Grant such further relief as the Court deems necessary and proper in the public interest.
G. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by Count I of this Amended Complaint.

GENERAL ALLEGATIONS FOR COUNTS II - V 12. Defendant, Con-Way Transportation Services, Inc. dba Con-Way Southern Express ("Con-Way"), is a Michigan Corporation engaged in business in Tampa, Hillsborough County, Florida. 13. Plaintiffs Juan Fonseca ("Fonseca"), Yuly Vazquez-Enriquez ("Enriquez") and Hector Cepeda ("Cepeda") (referred to collectively as "Plaintiffs" or as "Plaintiffs") are all former employees of Con-Way. 14. At all times relevant, Plaintiffs were employed at Con-Way working at ConWay’s Tampa, Florida location.
Count II Discrimination and Harassment - Title VII 15. Plaintiffs Fonseca, Enriquez and Cepeda reallege allegations 12-14 as if fully alleged herein. 16. This action is brought pursuant to Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e, et seq) ("Title VII"). This court has jurisdiction and such jurisdiction is invoked to secure protection of and redress deprivation of rights guaranteed by federal law, which rights provide for injunction and other relief for illegal discrimination in employment. 17. At all times relevant hereto, Defendant engaged in an industry affecting commerce and employed more than fifteen (15) regular employees. 18. At all times relevant hereto, each Plaintiff’s performance was more than satisfactory. 19. Plaintiff Fonseca began his employment at Con-Way at its Tampa location in July 2001 and remained so employed until his discharge in August of 2002.

20. Plaintiff Enriquez began his employment at Con-Way in 1998 and remained so employed at all times relevant hereto.
21. Plaintiff Cepeda began his employment at Con-Way in 2000 at its Miami, Florida location. He was employed at Con-Way’s Tampa location in or around July of 2001 and remained so employed until he was compelled to resign in or around November of 2002.
22. During Fonseea’s entire employment at Con-Way, he was consistently subjected to a severe and pervasive hostile work environment based on his national origin (CubanAmerican/Hispanic). The hostile work environment became even more severe and pervasive beginning around November of 2001 and lasted until he was discharged in August of 2002.
23. During Enriquez’s entire employment at Con-Way, he was consistently subjected to a severe and pervasive hostile work environment based on his national origin (CubanAmerican/Hispanic). The hostile work environment became even more severe and pervasive beginning around November of 2001 and was lasted throughout his employment.
24. During Cepeda’s entire employment at Con-Way, he was consistently subjected to a severe and pervasive hostile work environment based on his national origin (CubanAmerican/Hispanic). The hostile work environment became even more severe and pervasive beginning around November of 2001 and lasted until he was compelled to resign in November of 2002.
25. At all times relevant, each Plaintiff was subjected to disparate treatment because of his national origin in terms of job assignments, route assignments, denial of scheduled breaks and unfair altering of routes during working hours. Similarly situated employees not in Plaintiffs’ protected class were not so treated.
26. Con-Way managers and employees, at all times relevant, regularly called each Plaintiff racially derogatory names such as "Fucking Mexicans", "Spics" and "Fucking Ecuadorians".

27. The "Fucking Mexicans" phrase was first used against Plaintiffs by Con-Way’s managers and co-workers in November of 2001. At first Plaintiffs believed its use would be short lived and would die out on its own. When it did not die down and actually worsened, Mr. Fonseca and Mr. Cepeda, on their behalf and on the behalf of Mr. Enriquez and other CubanAmerican employees, went to their supervisor Jeff Taylor and to Shawn Hamlin (both of whom also regularly used the phrase) and told them that they found the remarks racially offensive and demanded that they and everyone else stop. Jeff Taylor responded; "What the fuck are you talking about, we’re only kidding". Not only did the comments not stop, they increased throughout the workplace.
28. Cepeda and Fonseca, for themselves and on behalf of Enriquez and other CubanAmericans, regularly made additional complaints of discrimination and harassment to their supervisor Jeff Taylor. Again no action was taken to stop the discrimination and harassment.
29. In mid December 2001, Cepeda, for himself and on behalf of Fonseca, Enriquez and other Cuban-Americans, complained to Service Center Manager Buddy Shoeaf about the offensive conduct and comments and told Mr. Shoeaf that he and the other Cuban-American employees found the conduct and comments racially discriminating and offensive. Mr. Shoeaf told Mr. Cepeda that he would take care of the situation.
30. Shortly after Cepeda first complained to Mr. Shoeaf, Jeff Taylor apologized to Cepeda for his comments, however the offensive conduct and comments throughout the work place only increased.
31. A few days after Cepeda complained to Mr. Shoeaf, after it became clear that the offensive conduct was increasing, Fonseca, for himself and on behalf of Cepeda, Eriquez and other Cuban-American employees complained to Mr. Shoeaf about the discriminatory and harassing treatment the Cuban-American employees had been experiencing. This time Mr. Shoeaf reacted by telling Fonseca; "Oh, I see, you’re trying to expand this. Are you trying to

drag other drivers into this now?" Mr. Shoeaf’s tone was combative and hostile. Although Mr. Fonseca’s complaint was well intended and legitimate, it was clear it was unwelcomed by Mr. Shoeafwho brushed Fonseca off. Fonseca then responded; "Ok, that’s all I have to say".
32. Fonseca and Cepeda complained again to Mr. Shoeaf later in December 2001 and on several occasions in January, February, March and April of 2002. Each time they told Mr. Shoeaf that the harassing and discriminatory behavior and comments had not stopped, had gotten worse, that the Hispanic employees were regularly called "Fucking Mexicans" by co-workers and by Tom Black and that the comments and hostility was done in the presence of supervisor Jeff Taylor who did nothing and condoned the conduct. Again Mr. Shoeaf and Con-Way did nothing to address or stop the discrimination, harassment or hostile work environment.
33. In July 2002, Fonseca also complained of the above discrimination, harassment and hostile work environment to Supervisor John Garcia who also did nothing to stop the conduct and comments.
34. In August of 2002, Enriquez, for himself and on behalf of Cepeda and the other Cuban-American Con-Way employees, complained to supervisor Jeff Taylor of ethnically derogatory remarks made to him and to others and complained that his co-workers had been ridiculing his accent. While some of the co-workers made tongue-in-cheek apologies, the discrimination continued.
35. Enriquez, for himself and on behalf of the Cuban-American employees, sent two complaint letters to corporate headquarters complaining of national origin discrimination, harassment and hostile work environment; the first was sent September 3, 2002, the second on November 20, 2002. Con-Way again failed to put a stop to the discrimination, harassment and the hostile work environment.

36. On October 5, 2002, Cepeda, for himself and on behalf of the other CubanAmerican employees, sent a complaint letter to Con-Way. Again Con-Way did not put a stop to the discriminatory actions.
37. In August of 2002, Fonseca was fired for pretextual reasons. The real reasons being his national origin and his complaining about discrimination.
38. In 2002, Cepeda and Enriquez were given worse driving assignments, job duties and denied breaks. This and other discriminatory and retaliatory actions led to Cepeda being compelled to leave Con-Way in November of 2002.
39. Plaintiffs regularly complained to Con-Way management about the pervasive discrimination and about the hostile work environment in which they worked. Con-Way never took any action to stop the discrimination or hostility or to protect Plaintiffs from such treatment.
40. The allegations in Paragraphs 18 through 39 above represent only a fraction of the inappropriate discrimination and conduct directed against Plaintiffs.
41. Con-Way, through its agents or supervisors, engaged in a pattern and practice of unlawful national origin discrimination by subjecting Plaintiffs to unwelcome hostility and disparate treatment in violation of Title VII.
42. The above-described unwelcome conduct and disparate treatment created an intimidating, oppressive, hostile and offensive work environment which interfered with Plaintiffs’ emotional well-being.
43. Con-Way at all times relevant hereto had actual and constructive knowledge of the conduct described in paragraphs 18 though 41.
44. As a result of the disparate treatment and the hostile and offensive work environment perpetrated by Defendant and maintained by Defendant’s failure to protect Plaintiffs from further discrimination, Plaintiffs each suffered severe emotional distress.

45. Con-Way violated Title VII by failing to adequately supervise, control, discipline, and/or otherwise penalize the conduct, acts, and failures to act of its managers and employees as described in paragraphs 18 through 40.
46. Con-Way failed to comply with its statutory duty to take all reasonable and necessary steps to eliminate discrimination from the workplace and to prevent it from occurring in the future.
47. Plaintiffs are informed and believe, and based thereon allege, that in addition to the practices enumerated above, Con-Way has engaged in other discriminatory practices against them which are not yet fully known. At such time as said discriminatory practices become known to them, Plaintiffs will seek leave of Court to amend this Complaint in that regard.
48. Plaintiffs have each filed charges of discrimination with the EEOC against ConWay. True and correct copies of the charges are attached hereto as Composite Exhibit "A", and incorporated herein by reference. The EEOC found in favor of each Plaintiff finding reasonable cause to believe that discrimination had occurred. Said findings are attached hereto as Exhibit "B" and incorporated herein by reference. Within 90 days of the filing of the EEOC’s original complaint, the EEOC issued a Right-to Sue Notice authorizing this lawsuit. True and correct copies of the Notices are attached hereto as Composite Exhibit "C", and incorporated herein by reference. Plaintiffs have exhausted their administrative remedies.
49. As a direct and proximate result of Con-Way’s willful, knowing and intentional discrimination against them, Plaintiffs have suffered and will continue to suffer pain and suffering, and extreme and severe mental anguish and emotional distress and they have suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. Plaintiffs are thereby entitled to general and compensatory damages in amounts to be proven at trial.

50. As a further direct and proximate result of Con-Way’s violation of Title VII, as heretofore described, Plaintiffs have been compelled to retain the services of counsel in an effort to enforce the terms and conditions of the employment relationship with Defendant, and have thereby incurred, and will continue to incur, legal fees and costs, the full nature and extent of which are presently unknown to them, who therefore will seek leave of Court to amend this Complaint in that regard when the same shall be fully and finally ascertained. Plaintiffs request that attorneys’ fees be awarded pursuant to Federal law.
51. Plaintiffs are informed and believe, and based thereon allege, that the outrageous conduct of Defendant described above was done with fraud, oppression and malice, with a conscious disregard for their rights and with the intent, design and purpose of injuring them. Plaintiffs are further informed and believe that Con-Way, through its officers, managing agents and/or its supervisors, authorized, condoned and/or ratified the unlawful conduct of managers and employees. By reason thereof, Plaintiffs are entitled to punitive or exemplary damages from Defendant in a sum according to proof at trial.
52. Plaintiffs demand trial by jury on all issues so triable. Wherefore, Plaintiffs Fonseca, Enriquez and Cepeda each pray this court award judgment in his favor against Con-Way for compensatory damages, punitive damages, pre and post judgment interest, attorneys’ fees, costs and such other relief as this court deems proper.
Count III Retaliation - Title VII 53. Plaintiffs reincorporate and reallege paragraphs 12-14 and 16-44 as if fully alleged herein. 54. This is a Title VII action for retaliatory action taken against Plaintiffs by Defendant following their complaints of discrimination.

55. Following their complaints to Con-Way as described herein, Con-Way Management became increasingly hostile to Plaintiffs, unjustly disciplined Plaintiffs, altered Plaintiffs work routes, eliminated Plaintiffs breaks and assigned Plaintiffs to worse job duties, all in retaliation for their exercising their rights under Title VII by complaining of discrimination.
56. Following his complaints of discrimination, Con-Way discharged Fonseca for pretextual reasons in retaliation for exercising his rights under Title VII.
57. In November of 2002, Cepeda was compelled to leave Con-Way because ConWay had made his work objectively and subjectively intolerable in retaliation for his valid protested complaints.
58. The Plaintiffs have each filed charges of retaliation with the EEOC against ConWay. True and correct copies of the charges are attached hereto as Composite Exhibit "A" and are incorporated herein by reference. The EEOC found in favor of each Plaintiff finding reasonable cause to believe that retaliation had occurred. Said findings are attached hereto as Exhibit "B" and incorporated herein by reference. Within ninety (90) days of the filing of the EEOC’s original Complaint, the EEOC has issued a Right-to-Sue Notice authorizing this lawsuit. True and correct copies of the Notices are attached hereto as Composite Exhibit "B" and are incorporated herein by reference. Plaintiffs have exhausted their administrative remedies.
59. Plaintiffs are informed and believe, and based thereon allege, that in addition to the practices enumerated above, Con-Way has engaged in other retaliatory practices against them which are not yet fully known. At such time as said retaliatory practices become known to them, Plaintiffs will seek leave of Court to amend this Complaint in that regard.
60. As a direct and proximate result of Con-Way’s willful, knowing and intentional retaliation against them, Plaintiffs have suffered and will continue to suffer pain and suffering and extreme and severe mental anguish and emotional distress. Plaintiffs have suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities.

Plaintiffs are thereby entitled to general and compensatory damages in amounts to be proven at trial.
61. As a further direct and proximate result of Con-Way’s violation of Title VII, as heretofore described, Plaintiffs have been compelled to retain the services of counsel in an effort to enforce the terms and conditions of the employment relationships with Defendant, and have thereby incurred, and will continue to incur, legal fees and costs, the full nature and extent of which are presently unknown to them, who therefore will seek leave of Court to amend this Complaint in that regard when the same shall be fully and finally ascertained. Plaintiffs request that attorneys’ fees be awarded pursuant to Federal law.
62. Plaintiffs are informed and believe, and based thereon allege, that the outrageous conduct of Defendant described above was done with fraud, oppression and malice, with a conscious disregard for their rights and with the intent, design and purpose of injuring them.
63. Plaintiffs are further informed and believe that Con-Way, through its officers, managing agents and/or its supervisors, authorized, condoned and/or ratified the unlawful conduct of its managers and employees. By reason thereof, Plaintiffs demand punitive or exemplary damages from Defendant.
64. Plaintiffs demand trial by jury on all issues so triable. WHEREFORE, Plaintiffs Fonseca, Enriquez and Cepeda each pray this court award judgment in his favor against Con-Way for compensatory damages, punitive damages, exemplary damages, pre and post judgment interest, attorney’s fees, costs and such other relief as this court deems proper.
Count IV Discrimination - Chapter 760 65. This is an action brought pursuant to Florida Statute Section 760 § et seq. ("Chapter 760").

66. Plaintiffs reallege allegations 12-14 and 16-47 as if fully alleged herein. 67. Florida Law has recognized violations of Title VII as violations of Chapter 760. Therefore all allegations herein alleging violations of Title VII, allege violations of Chapter 760 and this court has pendent jurisdiction over this actions. 68. Plaintiffs have filed charges of discrimination with the Florida Commission on Human Relation ("FCHR") against Con-Way. True and correct copies of the charges which were filed concurrently with the EEOC charges are attached as Composite Exhibit "A". The EEOC found in favor of each Plaintiff finding reasonable cause to believe that discrimination had occurred. Said findings are attached hereto as Exhibit "B" and incorporated herein by reference. Over 180 days have passed and Plaintiffs have exhausted their administrative remedies. 69. As a direct and proximate result of Con-Way’s willful, knowing and intentional discrimination against them, Plaintiffs have suffered and will continue to suffer pain and suffering and extreme and severe mental anguish and emotional distress, and they have suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. Plaintiffs are thereby entitled to general and compensatory damages in amounts to be proven at trial. 70. As a further direct and proximate result of Con-Way’s violation of Chapter 760, as heretofore described, Plaintiffs have been compelled to retain the services of counsel in an effort to enforce the terms and conditions of the employment relationships with Defendant, and have thereby incurred, and will continue to incur, legal fees and costs, the full nature and extent of which are presently unknown to them, who therefore will seek leave of Court to amend this Complaint in that regard when the same shall be fully and finally ascertained. Plaintiffs request that attorneys’ fees be awarded pursuant to State law. 71. Plaintiffs are informed and believe, and based thereon allege, that the outrageous conduct of Defendant described above was done with fraud, oppression and malice, with a

conscious disregard for their fights and with the intent, design and purpose of injuring them. Plaintiffs are further informed and believe that Con-Way, through its officers, managing agents and/or its supervisors, authorized, condoned and/or ratified the unlawful conduct of its managers and employees. By reason thereof, Plaintiffs are entitled to punitive or exemplary damages from Defendant in a sum according to proof at trial.
72. Plaintiffs demand trial by jury on all issues so triable. Wherefore, Plaintiffs Fonseca, Enriquez and Cepeda each pray this court award judgment in his favor against Con-Way for damages, punitive damages, pre and post judgment interest, attorney’s fees, costs and such other relief as this court deems proper.
Count V Retaliation - Chapter 760 73. The Plaintiffs reincorporate and reallege paragraphs 12-14, 66-44 and 56-58, as if fully alleged herein. 74. This is a Chapter 760 action for retaliatory action taken against Plaintiffs following their complaints of discrimination. 75. Florida Law has recognized violations of Title VII as violations of Chapter 760. Therefore all allegations herein alleging violations of Title VII, allege violations of Chapter 760 and this court has pendent jurisdiction over this action. 76. This is a Chapter 760 action for retaliatory action taken against Plaintiffs by Defendant following his complaints of discrimination. 77. Plaintiffs have filed charges of retaliation with the Florida Commission on Human Relations ("FCHR") against Con-Way. True and correct copies of the charges which were filed concurrently with the EEOC are attached as Composite Exhibit "A". The EEOC found in favor of each Plaintiff finding reasonable cause to believe that discrimination had occurred. Said findings are attached hereto as Exhibit "B" and incorporated herein by reference.

Over one hundred eighty (180) days have passed and Plaintiffs have exhausted their administrative remedies.
78. Plaintiffs are informed and believe, and based thereon allege, that in addition to the practices enumerated above, Con-Way has engaged in other retaliatory practices against them which are not yet fully known. At such time as said retaliatory practices become known to them, Plaintiffs will seek leave of Court to amend this Complaint in that regard.
79. As a direct and proximate result of Con-Way’s willful, knowing and intentional retaliation against them, Plaintiffs have suffered and will continue to suffer pain and suffering and extreme and severe mental anguish and emotional distress. Plaintiffs have suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. Plaintiffs are thereby entitled to general and compensatory damages in amounts to be proven at trial.
80. As a further direct and proximate result of Con-Way’s violation of Chapter 760, as heretofore described, Plaintiffs have been compelled to retain the services of counsel in an effort to enforce the terms and conditions of their employment relationships with Defendant, and have thereby incurred, and will continue to incur, legal fees and costs, the full nature and extent of which are presently unknown to them, who therefore will seek leave of Court to amend this Complaint in that regard when the same shall be fully and finally ascertained. Plaintiffs request that attorneys’ fees be awarded pursuant to State law.
81. Plaintiffs are informed and believe, and based thereon allege, that the outrageous conduct of Defendant described above was done with fraud, oppression and malice; with a conscious disregard for their rights and with the intent, design and purpose of injuring them. Plaintiffs are further informed and believe that Con-Way, through its officers, managing agents and/or its supervisors, authorized, condoned and/or ratified the unlawful conduct of its managers

and employees. By reason thereof, Plaintiffs are entitled to punitive or exemplary damages from
Defendant in a sum according to proof at trial.
82. Plaintiffs demand trial by jury on all issues so triable.
Wherefore, Plaintiffs Fonseca, Enriquez and Cepeda each pray this court award judgment
in his favor against Con-Way for damages, punitive damages, pre and post judgment interest,
attorney’s fees, costs and such other relief as this court deems proper.
Respectfully Submitted,
ERIC S. DREIBAND General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN REAMS Associate General Counsel
DELNER FRANKLIN-THOMAS Regional Attorney
MICHAEL J. FARRELL Supervisory Trial Attorney
JOHN,/C. WEAVER Trial Attorney Colorado Bar No. 030333 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION One Biscayne Tower Two S. Biscayne Boulevard Suite 2700 Miami, FL 33131 Phone: (305) 530-6010 Fax: (305) 536-4494
i EEOC’s signature addresses the portion of this Amended Complaint entitled "Count I EEOC Action."

~-~ J/k~ M. THOMPSON, ESQUIRE Nelson, Bisconti & Thompson, L.L.C.
718 W. MLK Boulevard, Suite 200 Tampa, Florida 33603-3104 (813) 221-0999 * (813) 314-9626 Fax FBN: 86108 Attorney for Plaintiff-Intervenors Fonseca,
Enriquez and Cepeda

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

CASE NO.: 8:03-CV-2043-T-27TGW

and

JUAN C. FONSECA, YULY VAZQUEZ-ENRIQUEZ and HECTOR CEPEDA,

Plaintiff-Intervenor, v.

CON-WAY TRANSPORTAnON SERVICES, INC.,

Defendant.
------------------------------~/
CONSENT DECREE

1. This Consent Decree ("Decree") is made and entered into by and

between Plaintiff, the Equal Employment Opportunity Commission (hereinafter referred to as the

"Commission" or "EEOC"), Plaintiff-Intervenors Hector Cepeda, Juan Fonseca, and Yuly Vazquez-

Enriquez and Defendant, Con-Way Transportation Services, Inc., d/b/a Con-Way Southern Express.

(hereinafter referred to as "Defendant" or "Con-Way"). The Commission, Plaintiff-Intervenors and

Con-Way are collectively referred to herein as "the Parties."

2. On September 30,2003, EEOC initiated this action against Con-Way under Title VII

of the Civil Rights Act of 1964, and Title I of the Civil Rights Act of 1991, to correct allegedly

unlawful employment practices on the basis of national origin, and to provide appropriate relief to

Hector Cepeda, Yuly Vazquez-Enriquez and Juan Fonseca, who were al\egedly adversely affected

by such practices. EEOC alleges that Defendants violated Title vn by subjecting Hector Cepeda,
Yuly Vazquez-Enriquez and Juan Fonseca, to a hostile work environment by supervisors and coworkers because of their national origin. Cuban. On February 18,2004, Hector Cepeda, Yuly Vazquez-Enriquez and Juan Fonseca intervened in this action and brought claims of discrimination based on their national origin, Cuban and retaliation under Title VII, as well as under 42 U.S.c. §1981 and the Florida Civil Rights Act of1992, Section 760.01 el. seq., Fla. Stat. (I 997) ("FCRA").
3. In the interest of resolving this matter, to avoid the cost oflitigation, and as a result ofhaving engaged in comprehensive settlement negotiations, the parties have agreed that this action should be finally resolved by the entry of this Decree. This Decree is final and binding on the Parties, their successors and assigns.
4. The Parties agree that this Decree resolves all claims against Con-Way alleged in EEOC Charge Number 151 A2 01939, EEOC Charge Number 151 A2 01940, EEOC Charge Number 151 A2 01942 and the Complaints filed in this action. The Parties further agree that this Decree does not resolve any charges of discrimination that may be pending with the EEOC other than the charges referred to in this paragraph. As of the time of filing of this Decree, there are no other charges pending against Con-Way with the EEOC's Tampa Area Office.
5. This settlement shall not be construed as an admission of liability by Con-Way and Con-Way expressly denies liability.
NOW, THEREFORE, the Court having carefully examined the tenus and provisions ofthis Decree, and based on the pleadings filed by the Parties, it is ORDERED, ADJUDGED AND DECREED THAT:
2

JURISDICTION 6. This Court hasjurisdiction ofthe subject matter ofthis action and over the Parties for the purposes of entering and enforcing this Decree. 7. No party shall contest the jurisdiction of this federal court to enforce this Decree and its terms or the right of the EEOC to seek enforcement of the Decree in the event Defendant breaches any of the terms of this Decree.
GENERAL INJUNCTIVE PROVISIONS 8. Con-Way agrees that it will not discriminate against employees or their terms and conditions of employment because of their national origin in violation of Title VII of the Civil Rights Act of 1964, as amended. 9. Con-Way agrees that it will not unlawfully discriminate against any employee in this matter who opposed any ofDefendant's practices which the employee believed to be a violation of Title VII; who filed a charge of discrimination with the EEOC alleging violation(s) of such statute; or who cooperated with the EEOC in the investigation or prosecution of this case.
TRAINING 10. Con-Way has established a written policy of compliance with Title VII which is shown in its Code of Business Ethics the pertinent page which is attached hereto as Exhibit A. A complete copy of this policy will be distributed to all its current employees at its Tampa Service Center by May 15,2005. Con-Way further agrees that all new employees at its Tampa Service Center will be provided a copy of the policy within one week of employment. 11. In order to further ensure the effective implementation of Defendant's antidiscrimination policies, Con-Way will conduct a three (3) hour annual training composed of a one
3

and a half hour online tutorial, and one and a halfhour interactive training session throughout the duration of this Decree for all of its personnel at its Tampa Service Center, with specific emphasis on recognizing national origin discrimination and the proper procedure to be followed ifthey become aware of national origin discrimination in the workplace and/or if they receive a complaint of such discrimination. Defendant agrees to provide the EEOC with at least two (2) weeks notice before it conducts its training session(s), with the date(s) and location(s) of the training, the identification of the training materials to be used at the training session, and the name and job title ofthe employees who will be in attendance at the training. The training will be conducted by Con-Way's Training Manager Richard Harper or his replacement, if Mr. Harper is unavailable.
12. Defendant agrees that the training described in paragraph 11 shall be conducted within sixty (60) days of the entry of this Decree, and, should thereafter take place annually in the same quarter as the first training for the duration of this Decree. Defendant further agrees that the training materials used in the training described in paragraph 11 shall be given to all new Tampa Service Center managers and supervisors, who did not attend the annual training, within thirty (30) days of being placed in a management or supervisory position.
LETTERS OF REFERENCE 13. Defendant agrees to give Hector Cepeda, Yuly Vazquez-Enriquez and Juan Fonseca neutral letters ofreference signed by Jeff Kerbo, Director ofHuman Resources attached as Exhibit ~, within fifteen (15) calendar days of the entry of this Decree. Further, Defendant agrees that
inquiries by prospective employers ofMr. Cepeda, Mr. Vazquez-Enriquez and Mr. Fonseca may be
directed to Jeff Kerb0 at phone number (817) 358-3655 and/or facsimile number (817) 358-3700,
4

who will provide a neutral reference and will mention only the position and duration of Mr. Cepeda's, Mr. Vazquez-Enriquez's and Mr. Fonseca's employment with Con-Way.
POSTING 14. The Defendant will post within seven (7) days from the Court's execution of this Decree, a laminated I I" x 14" sized copy of the Notice attached hereto as Exhibit C. Said notice shall be posted at Con-Way' s Tampa Service Center for the duration ofthis Decree in a conspicuous location accessible to all employees (i.e. employee bulletin board or lunch room).
MONITORING IS. The Defendant will retain all Con-Way Tampa Service Center employment records relating in any way to any complaint, allegation and investigation of national origin discrimination for the duration of this Decree as required by federal law. 16. The Defendant will provide the EEOC with the name, address and phone number ofany person who reports in accordance with Con-Way's policy attached as Exhibit A that he/she has been subjected to discrimination based on their national origin while working at Con-Way's Tampa, FL facility during the preceding year. Defendant will also state its actions taken in response to each such allegation. The first report shall be submitted no later than July 31,2005, and thereafter by July 31SI annualIy, throughout the duration of this Decree. The Defendant wiIl provide upon request by the Commission any and all documentation associated with each such complaint. 17. Defendant will certify to the EEOC annually throughout the duration ofthis Decree that it is in compliance with all aspects of this Decree. The first such certification will be due no later than July 31,2005, and thereafter by July 31.1 annually, throughout the duration ofthis Decree. The certifications required to be submitted to the EEOC pursuant to this Consent Decree shall be
5

mailed with the notation CON-WAY MONITORING to: United States Equal Employment Opportunity Commission, Attention: Office ofthe Regional Attorney, 1Biscayne Tower, Suite 2700, 2 South Biscayne Boulevard, Miami, Fl 33131.
MONETARY RELIEF 18. Defendant shall pay a lump sum in the amount of$ 240,000.00 in resolution of this litigation. The monies shall be distributed within fifteen (15) calendar days of the entry of this Decree as set forth below in Exhibit D attached hereto. 19. IfDefendant fails to tender the above-mentioned payments as set forth in paragraph 18 above, then Defendant's shall pay interest on the defaulted payment at the rate calculated pursuant to 26 U.S.C. Section 6621 (b) until the same is paid, and bear any additional costs incurred by the EEOC caused by the non-compliance or delay of the Defendant.
ENFORCEMENT OF DECREE 20. The Commission shall have independent authority to seek the judicial enforcement of any aspect, teInl or provision of this Decree.
COSTS 21. Each Party shall bear its own costs and fees associated with this litigation.
DURATION OF CONSENT DECREE 22. The duration of this Decree shall be three (3) years from the date of entry of the Decree.
6

/11::.
SO ORDERED, ADJUDGED AND DECREED, tlus_!l_9daYOfMay, 2005.

D. WHIITEMORE

AGREED TO:

D STATES DISTRICT JUDGE

FOR THE PLAINTIFF,

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMM ISSION

by:
Regional Attorney U.S. EQUAL EMPLOYMENT OPPORTUN ITY COMMISSION Miam i District Office One Biscayne Tower, Suite 2700 2 South Biscayne Boulevard Miam i, Florida 33131 Teleph one: (305) 530-6001 Facsimile: (305) 5364494
AGREED TO: FOR THE PLAlNTlFF-rNTERVENOR

Jam

son, Esq.

NE

ONTI & THOMPSON, L.L.C.

718 est a in Luther King Blvd. Suite 200

Tampa, FL 3 603

Telephone: ( 13) 221-0999

Facsimile: (813) 314-9626

- Dale: f-,r...::c-=-+

~Ci!Wi;Qi£~ICES, dib/a CON-WAY SOUTHERN EXPRESS
by: :10 W.Campbe, ' M chael D. Malfi! CONSTANGY.
7

100 West Kennedy Boulevard, Suite 500 Tampa, FL 33602 Telephone: (813) 223-7166 Facsimile: (813)
8

EXHIBIT A CON-WAY'S ANTI-DISCRIMINATION POLICY
9

EXHIBIT A
EMPLOYMENT PRACTICES
Equal Employm,!nt Opportunity
The Company provides equal:employmcnt opportUnities for all employees and applicants. Unlawful discrimination or blrusmcnt on the basis ofra~e, creed, color, anc~try) age, liex. (including pregnancy, childbiItb, or relate,( mecHcal eonditiolU), rtligion, national origin, dWhility, medical condition. fainily care leave status, v.!tcran 8ta.tnS, marital ~tatus. sexual orientation, or any other legally protected status is strictly prohibited. 1'his polie:, of equal employment opportunity applies to recruiting, advertising, initial employmen~ adVIUI4!cment. nansfer. cicmotion, ]ayo~ tcrm.i.nAtion, rIlLeS of pay. selection for training, and other aspects ofemployrp.cnt with the Comp8J1Y. This policy is more fully defined inCtin-Wa.y's
Persomlel Policies :.nd Procedures Manual.
Sexual or Racial Harassment
The Company prohIbits all fcr.ms of sexual harlSsmont, as well as harassment basod on race, creed, color, reli~ion. ancestry. Jge, sex (u•.eluding pregnauL)', childbirtil, or related medical conditions), national origin. disability, !l1ed1cal cordition, family em leave starns, veteran status, marital status, scxtW orientation, or any Ilther cbarteteristic protected from discriminauoo by applicab18law.
Sexual harassmect consis~ o' •unwelcome sexual advances, requests:for scxllal favors and other verbal OT pbysical conduct of a sexual 'lature when:
submissior. to such ccnduct is ffiilde a lenn or condition of employment; • submissioI' to or rejection of such conduct is U$ed as a basis 10r employment decisions; or
such cond\\.:t has the. >UIpose or effect of unreasonably interfaing with an Individual's work
pcrforman,!e or crcau19 an intimidating, offeniive or hostile work environment.
Sexual harassment can occ\.U"between supervisor and employee, bcrtween co-worms, or between an emp loyee and lOom~one outsBe the Company, such as s. vendor. Sup"cvisars may not threaten or imply that an employee':i response i'O iexual advancus will in any way influence that employee's continued employment or a.dvancement
Any employee wi,,) feels thaI he or she has been discriminated against or subjected to sexual or other
prohibited hatusIc,ent shoule. report the incicllmt promptly to the Human RcsoUtC~ Depwmen.t of the
Con~Wa.y company they woit for or the CNF Ethic:> Line so that the matter can be Investigated and
resolved as quickly as possibtc. Subject to applicable law, any employee who is found to b~ responsible
for harassment, or retaliatingegainst -any individual faT Teporti.n~ a. claim ofharassmcnt or cooperating in
an investigation, will b.: sub}:ct to disciplinary action. up to and including termination ofemployment..
Remember that. r~gardless o"legal definitions, the Company expects employees to intenct with each
other in 11 professl"nal s.nd respectful manner. This policy is more fiJly detin.ed in Con,.Way's personnal Policies and 'Proc~dures Manual..
Violence in the Workplace The Company re(:t)2I1i.zes that workplace violence is a concr:m to employers and employees eve:ywhere.. The Company is ,;olllIXl.itted t) providlni a safe, violence-free workplace. and to further this commim1~nt,
the Company has &dopted a lolo Threat! or 'Vlo\c,nce in the Workpla(~e Policy. Th1s pOlley is Set out in
Con-Wa.y's PersclInel Polici~s and Procedme& Manual. This policy strictly prolu"bit5 employccs, consultants, customers, vend)!S, visitors, or !ll'Iyon.e else on Company property or engagmg in a

EXHIBITB LETTERS OF REFERENCE
10

CSEcon-OJR'I SOUTHERn EXPRESS CaHU/J/f 'OanspomItJon Sen.«:es.1nc. JEFF D. KERBO
DireClor - Human Resources
April 11,2005 Re: Yuly Vasquez To Whom It May Concern: Yuly Vasquez was employed by Con-Way Southern Express in the classification of Driver / Sales Representative from August 4, 1998 through March 9. 2005.
Con-Way Southern Express Director - Human Resources
14500 TRINITY BLVD. SUITE 118. FORT WORTH, TEXAS 76155

CSECOfl-WRVSOUTHERn EXPRESS CaHJIaq 1i;mpat1ItIon Setv/=, Inc. JEFF D. KERBO
Director' Hl)"Tlan Resources
April 1L 2005 Re: Juan C. Fonseca To Whom It May Concern: Juan Fonseca was employed by Con-Way Southern Express in the classification ofOriver I Sales Representative from October 9, 2001 through August 21, 2002.
11(~
Jeff Kerbo Con-Way Southern Express Director - Human Resources
14500 TRINITY BLVD. SUITE t 16. FORT WORTH. TEXAS 76155

CSECOn-lORYSOUTHERn EXPRESS CotHJJaq TtanrpOttatJon s.n.t:ar.1nc.
JEFF D. KERBO Difeclat • Human Resoufces
April 11, 2005 Re: Hector I Cepeda To Whom It May Concern: Hector Cepeda was employed by Con-Way Southern Express in the classification of Driver / Sales Representative from April 30, 2000 through November 15, 2002.
Con-Way Southern Express Director - Human Resources
14500 TRINITY BLVD. SUITE 118. FORT WORTH. TEXAS 76155

EXHIBITC

NOTICE TO ALL EMPLOYEES POSTED PURSUANT TO A CONSENT DECREE BETWEEN THE Ul'.'1TED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND CON-WAY TRANSPORATION SERVICES, INC., d/b/a CON-WAY SOUTHERN
EXPRESS

This notice is being posted pursuant to a Consent Decree entered by the Court in U. S. EEOC vs. Con-Way Transportation Services, Inc. d/b/a Con-Way Southern Express, CASE NO: 8:03-CV-2043-T-27TGW. Con-Way Transportation Services, Inc., has agreed that it will not discriminate against employees on a basis of National Origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Title VII protects individuals from employment discrimination because of their race, religion, color, national origin, or sex. Con-Way Transportation services, Inc., will not condone employment discrimination of any kind as set forth in federal antidiscrimination laws.

Furthermore, Con-Way Transportation Services, Inc., assures its employees that it supports Title VII and will not take any action against an individual because he/she has exercised his/her rights under the law to oppose discriminatory acts or to file charges with the EEOC.

Appropriate corrective action, up to and including termination, shall be taken against any employee (including management personnel) found to violate the policies regarding discrimination, based upon the circumstances involved.

This notice shall remain posted for three (3) years from the date signed. Employees or
applicants for employment who have questions about their rights under Title vn or any other
federal anti-discrimination law may telephone the Miami District Office of the Equal
Employment Opportunity Commission at 1-800-669-4000.

K Apa,' Signed this

TlA
day of

L. ,2005

~' nn_ ( ~~.~ RESIDENT

CON-WAY SOUTHERN EXPRESS

Ap DO NOT REMOVE BEFORE

II .I\"

2008.

EXHIBIT D
MONETARY DISTRIBUTION
The $ 240,000.00 monetary relief paid to resolve U.S. EEOC & Fonseca & Vasquez & Ce.peda vs. Con-Way Tramm0rtation Services, Inc., d/b/a Con-Way Southern Express, CASE NO: 8:03-CV-2043-T-27TGW shall be distributed as follows:
(A) Defendant will pay Juan Fonseca $13.333.34, which shall be representative oflost wages less appropriate withholdings and payroll taxes. Defendant shall be responsible for the payment of the employer's share of any FICA and FUTA, and will issue a form W-2 for same. Defendant will pay Juan Fonseca $66,666.66 representing compensatory damages and attorney fees and will issue an I.R.S. fonn 1099 itemizing same.
(B) Defendant will pay Hector Cepeda $13,333.34 which shaH be representative of lost wages less appropriate withholdings and payrolI taxes. Defendant shall be responsible for the payment of the employer's share of any FICA and FUTA, and will issue a fonn W-2 for same. Defendant will pay Hector Cepeda $66,666.66, representing compensatory damages and attorney fees and will issue an I.R.S. form 1099 itemizing same.
(C) Defendant will pay Yuly Vasquez Enriquez $ 80,000.00, representing compensatory damages and attorney fees and will issue an I.R.S. fonn 1099 itemizing same.
The payments to the individual Plaintiff-Intervenors Ms. Fonseca, Mr. Vasquez-Enriquez, and Mr. Cepeda shall be made bycheck in their individual name and James Thompson, their attorney and forwarded to James M. Thompson, Esq., NELSON, BISCONTI & THOMPSON, L.L.c., 718 West Martin Luther King Blvd. Suite 200, Tampa, FL 33603, by certified mail with a return receipt requested. A copy of the check(s) shall be forwarded to the attention of Carla Von Greiff, Senior Trial Attorney, U.S. Equal Employment Opportunity Commission, SO 1 East Polk Street, Suite 1000, Tampa, Florida 33611.

 
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CLOSED, TGW
U.S. District Court Middle District of Florida (Tampa) CIVIL DOCKET FOR CASE #: 8:03-cv-02043-JDW-TGW

United States Equal v. Con-Way Transport. Assigned to: Judge James D. Whittemore Referred to: Magistrate Judge Thomas G. Wilson Demand: $0 Cause: 42:1981 Civil Rights

Date Filed: 09/30/2003 Date Terminated: 04/05/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
United States Equal Employment Opportunity Commission

represented by Carla Johanna Von Greiff Equal Employment Opportunity Commission Tampa Area Office 501 E. Polk St., Ste. 1000 Tampa, FL 33602 813/202-7903 Fax: 813/228-2045 Email: carla.vongreiff@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Con-Way Transportation Services, Inc. doing business as Con-Way Southern Express

represented by Frank B. Shuster Constangy, Brooks & Smith, LLC Suite 2400 230 Peachtree St NW Atlanta, GA 30303-1557 404/525-8622 Fax: 404/525-6955 Email: fshuster@constangy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Dennis Malfitano Constangy, Brooks & Smith, LLC 100 N Tampa St - Ste 3350 PO Box 1840 Tampa, FL 33601-1840 813/223-7166 Fax: 813/223-2515 Email: mmalfitano@constangy.com LEAD ATTORNEY

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Movant Juan C. Fonseca
Movant Yuly Vazquez-Enriquez
Movant Hector Cepeda

ATTORNEY TO BE NOTICED
Angelique Groza Lyons Constangy, Brooks & Smith, LLC 100 North Tampa StreetSuite 3350 P.O. Box 1840 Tampa, FL 33602 813/223-7166 Fax: 813/223-2515 Email: alyons@constangy.com ATTORNEY TO BE NOTICED
John W. Campbell Constangy, Brooks & Smith, LLC 100 North Tampa St., Ste.3350 P.O. Box 1840 Tampa, FL 33601-1840 813/223-7166 Fax: 813/223-2515 Email: jcampbell@constangy.com ATTORNEY TO BE NOTICED
represented by James Moten Thompson Nelson, Bisconti & Thompson, L.L.C. 718 W. Martin Luther King Blvd., Suite 200 Tampa, FL 33603-3104 813-221-0999 Fax: 813-314-9626 Email: thompson@tampabay.rr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Moten Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Moten Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/30/2003

#

Docket Text

1 COMPLAINT for injunctive relief sought filed; jury demand Filing fee

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09/30/2003 09/30/2003 10/03/2003 10/03/2003 11/25/2003 12/29/2003 12/29/2003
01/16/2004 01/30/2004
02/05/2004
02/05/2004 02/10/2004 02/19/2004 02/19/2004 03/08/2004

waived. (wlb) (Entered: 10/01/2003)
SUMMONS(ES) issued for Con-Way Transport. Consent(s) issued. (wlb) (Entered: 10/01/2003)
MAGISTRATE JUDGE CASE ASSIGNMENT Magistrate assigned: Thomas G. Wilson (wlb) (Entered: 10/01/2003)
2 Case Management Notice. (wlb) (Entered: 10/06/2003)
3 NOTICE of designation under Local Rule 3.05 - TRACK 2. (ctc) (wlb) (Entered: 10/06/2003)
4 ANSWER and affirmative defenses to [1-1] complaint by Con-Way Transport. (wlb) (Entered: 11/26/2003)
5 MOTION with memorandum in support to intervene by Juan C. Fonseca, Yuly Vazquez-Enriquez, Hector Cepeda (original signed complaint in intervention attached) (ag) (Entered: 12/30/2003)
6 APPEARANCE of non-resident counsel and designation of local counsel as to Con-Way Transportation. Local counsel: Angelique Groza Lyons, Michael D. Malfitano, John W. Campbell. Non-resident counsel: Frank B. Shuster. (mrh) (Entered: 12/30/2003)
7 CASE MANAGEMENT REPORT (wlb) (Entered: 01/20/2004)
8 ORDER granting [5-1] motion to intervene by Juan C. Fonseca, Yuly Vazquez-Enriquez, Hector Cepeda set amended complaint deadline at 2/17/04 for United States Equal ( Signed by Judge James D. Whittemore ) ctc (wlb) (Entered: 02/02/2004)
9 CASE MANAGEMENT AND SCHEDULING ORDER setting Discovery cutoff 9/30/04 ; dispositive motion filing deadline for 11/1/04 Pretrial statement due on or before 3/8/05 ; Pretrial conference for 10:00 3/11/05 ; Scheduled for Judge James D. Whittemore; Jury trial set for 4/4/05 before Judge James D. Whittemore ( signed by Judge James D. Whittemore ) ctc (jlh) Modified on 02/06/2004 (Entered: 02/05/2004)
DEADLINE updated; set jury trial for 4/4/05 scheduled for Judge James D. Whittemore (jlh) (Entered: 02/05/2004)
10 NOTICE by United States Equal of unavailability of counsel from 2/13/04 to 3/8/04 (wlb) (Entered: 02/11/2004)
11 NOTICE of filing amended complaint by United States Equal Employment Opportunity Commission. (jab) (Entered: 02/20/2004)
12 AMENDED COMPLAINT by United States Equal amending [1-1] complaint. (Answer due 3/8/04 for Con-Way Transport.); jury demand. (jab) (Entered: 02/20/2004)
13 ANSWER and affirmative defenses by Con-Way Transport. to [12-1] amended complaint. (wlb) (Entered: 03/09/2004)

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06/03/2004 08/06/2004 08/20/2004 08/30/2004 09/13/2004 09/24/2004 09/24/2004
10/12/2004
11/15/2004 11/23/2004
01/03/2005 01/03/2005 01/03/2005

14 NOTICE OF HEARING: set mediation conference for 9:00 a.m. on 8/24/04 (bls) (Entered: 06/04/2004)
15 WITNESS LIST by Con-Way Transportation Services, Inc.. (Campbell, John) (Entered: 08/06/2004)
16 WITNESS LIST by Juan C. Fonseca. (Thompson, James) (Entered: 08/20/2004)
17 MEDIATION REPORT Hearing held on 8/24/2004 Hearing outcome: IMPASSE(Singletary, Cary) (Entered: 08/30/2004)
18 First MOTION for Extension of Time to Complete Discovery Consent Motion by Con-Way Transportation Services, Inc.. (Campbell, John) (Entered: 09/13/2004)
Set/reset deadlines: Discovery due by 9/30/2004. Dispositive Motions due by 11/1/2004. Pretrial statement due by 3/8/2005. (KIT) (Entered: 09/24/2004)
Set Deadlines/Hearings: Jury Trial set for the Month of April beginning 4/4/2005 in Courtroom 13B before Judge James D. Whittemore. Final Pretrial Conference set for 3/11/2005 10:00 AM in Courtroom 13B before Judge James D. Whittemore. (KIT) (Entered: 09/24/2004)
19 ORDER granting the 18 Joint Stipulation and Motion to Extend Discovery Deadline and Unopposed Motion to Extend the Case Management and Scheduling Order Dates. [see order for new deadlines and trial dates]. Signed by Judge James D. Whittemore on 10/12/2004. (kle) (Entered: 10/12/2004)
20 Second MOTION for Extension of Time to Complete Discovery by ConWay Transportation Services, Inc.. (Campbell, John) (Entered: 11/15/2004)
21 ENDORSED ORDER granting 20 Joint Stipulation and Motion to Extend the Discovery Deadline for Defendant to Continue the Deposition of Plaintiff Yuly Vazquez Enriquez. The parties shall have up to and including 12/6/04 to complete the deposition of Plaintiff Yuly Vazquez Enriquez. By Judge James D. Whittemore on 11/23/2004. (kle) (Entered: 11/23/2004)
22 MOTION for summary judgment against Plaintiff Fonseca by Con-Way Transportation Services, Inc.. (Campbell, John) (Entered: 01/03/2005)
23 MEMORANDUM in support re 22 Motion for summary judgment against Plaintiff Fonseca filed by Con-Way Transportation Services, Inc.. (Campbell, John) (Entered: 01/03/2005)
24 NOTICE by Con-Way Transportation Services, Inc. re 22 MOTION for summary judgment against Plaintiff Fonseca, 23 Memorandum in support of filing exhibits in support in motion for summary judgment against Plaintiff Fonseca (Attachments: # 1 Affidavit Kerbo# 2 Affidavit Shoaf# 3 Affidavit Garcia# 4 Declaration of Holland# 5 Declaration of

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01/03/2005 01/03/2005 01/03/2005
01/03/2005 01/03/2005 01/03/2005 01/03/2005
01/03/2005 01/07/2005 01/12/2005 01/13/2005

Davis# 6 Declaration of McCain# 7 Declaration McKell# 8 Declaration of Quarles# 9 Fonseca deposition excerpts.part 1# 10 Fonseca deposition excerpts.part 2# 11 Shoaf deposition excerpts# 12 Kerbo deposition excerpts)(Campbell, John) (Entered: 01/03/2005)
25 MOTION for summary judgment against Plaintiff Cepeda by Con-Way Transportation Services, Inc.. (Campbell, John) (Entered: 01/03/2005)
26 MEMORANDUM in support re 25 Motion for summary judgment against Plaintiff Cepeda filed by Con-Way Transportation Services, Inc.. (Campbell, John) (Entered: 01/03/2005)
27 NOTICE by Con-Way Transportation Services, Inc. re 26 Memorandum in support, 25 MOTION for summary judgment against Plaintiff Cepeda of filing exhibits in support of motion for summary judgment against Plaintiff Cepeda (Attachments: # 1 Affidavit of Kerbo# 2 Affidavit of Shoaf# 3 Affidavit of Garcia# 4 Declaration of Davis# 5 Declaration of McCain# 6 Cepeda deposition excerpts# 7 Shoaf deposition excerpts# 8 Kerbo deposition excerpts# 9 Hamelin deposition excerpts)(Campbell, John) (Entered: 01/03/2005)
28 MOTION for leave to file excess pages by Con-Way Transportation Services, Inc.. (Campbell, John) (Entered: 01/03/2005)
29 MOTION for summary judgment against Plaintiff Enriquez by Con-Way Transportation Services, Inc.. (Campbell, John) (Entered: 01/03/2005)
30 MEMORANDUM in support re 29 Motion for summary judgment against Plaintiff Enriquez filed by Con-Way Transportation Services, Inc.. (Campbell, John) (Entered: 01/03/2005)
31 NOTICE by Con-Way Transportation Services, Inc. re 29 MOTION for summary judgment against Plaintiff Enriquez, 30 Memorandum in support of filing exhibits in support of motion for summary judgment against Plaintiff Enriquez (Attachments: # 1 Affidavit of Kerbo# 2 Affidavit of Shoaf# 3 Affidavit of Garcia# 4 Enriquez deposition excerpts.part 1# 5 Enriquez deposition excerpts.part 2# 6 Kerbo deposition excerpts# 7 Shoaf deposition excerpts)(Campbell, John) (Entered: 01/03/2005)
32 MOTION for summary judgment against United States Equal Employment Opportunity Commission by Con-Way Transportation Services, Inc.. (Campbell, John) (Entered: 01/03/2005)
33 NOTICE of withdrawal of motion by Con-Way Transportation Services, Inc. re 32 MOTION for summary judgment against United States Equal Employment Opportunity Commission filed by Con-Way Transportation Services, Inc.,. (Campbell, John) (Entered: 01/07/2005)
34 Unopposed MOTION for Extension of Time to File Response/Reply to Defendant's Motions for Summary Judgment by Juan C. Fonseca. (Thompson, James) (Entered: 01/12/2005)
35 ORDER granting 34 Motion for Extension of Time to File

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01/14/2005 01/20/2005 01/20/2005 01/24/2005
02/17/2005 02/24/2005 04/01/2005 04/05/2005 04/05/2005 05/05/2005 05/16/2005 05/20/2005

Response/Reply . Signed by Judge James D. Whittemore on 1/13/2005. (kle) (Entered: 01/13/2005)
36 NOTICE:Mediation Conference set for 2/11/2005, 09:30 AM in Courtroom 10 A before Magistrate Judge Mary S. Scriven. (scr) (Entered: 01/14/2005)
37 NOTICE of Hearing: Final Pretrial Conference RESET for 3/9/2005 10:00 AM in Courtroom 13 B before Judge James D. Whittemore. (aho) (Entered: 01/20/2005)
38 AMENDED NOTICE of Hearing: Final Pretrial Conference RESET for 5/6/2005 10:30 AM in Courtroom 13 B before Judge James D. Whittemore. All other deadlines set forth in the Court's October 12, 2004 order remain in effect.(aho) (Entered: 01/20/2005)
39 ENDORSED ORDER granting 28 Defendant's Motion to File A Legal Memorandum in Excess of Twenty Pages. The Court accepts Defendant's 26 page memorandum (Dkt. 30) in support of its Motion for Partial Summary Judgment. By Judge James D. Whittemore on 1/24/2005. (kle) (Entered: 01/24/2005)
40 Unopposed MOTION for Extension of Time to File Response/Reply to Defendant's Motions for Summary Judgment and Notice of Conditional Settlement by Juan C. Fonseca. (Thompson, James) (Entered: 02/17/2005)
41 ORDER granting 40 Agreed Motion for Extension of Time to File Plaintiffs' Responses to Defendant's Motions for Summary Judgment. Signed by Judge James D. Whittemore on 2/23/2005. (kle) (Entered: 02/24/2005)
42 NOTICE of Settlement and Undisputed and Agreed Motion to Stay Proceedings to Effectuate Final Settlement and Dismissal by Juan C. Fonseca (Thompson, James) (Entered: 04/01/2005)
43 ORDER directing administrative closure pursuant to the Notice of Settlement (Dkt. 42). The clerk is directed to administratively close this case and terminate any pending motions. Signed by Judge James D. Whittemore on 4/4/2005. (kle) (Entered: 04/05/2005)
44 ORDER directing administrative closureSigned by Judge James D. Whittemore on 4/5/2005. (wlb) (Entered: 04/14/2005)
45 NOTICE by United States Equal Employment Opportunity Commission Notice of Filing Consent Decree (Attachments: # 1 Exhibit Consent Decree)(Brown, Jennifer) (Entered: 05/05/2005)
46 CONSENT DECREE -- Signed by Judge James D. Whittemore on 5/16/2005. (kle) (Entered: 05/16/2005)
47 ORDER - Pursuant to the 46 Consent Decree, the Clerk is directed to close this case. Signed by Judge James D. Whittemore on 5/18/2005. (kle) (Entered: 05/20/2005)

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