IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

APt "i 4 2OO4
O. $. D~STRICT COURT EASTERSNTD.iSLTORUiICST OF MC

Plaintiff,

APRIA HEALTHCARE GROUP, INC., Defendant.

)

)

COMPLAINT

)

Jury Trial Demanded

)

)

COMPLAINT

NATURE OF THE ACTION

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

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

disability and to provide appropriate relief to a former employee, Charging Party in Charge

Number 280A201197 ("the Charging Party"), who was adversely affected by such practices. The

Commission alleges that Apria Healthcare Group, Inc. ("Apria") failed to make reasonable

accommodations and terminated the Charging Party, a quality assurance coordinator, because of

her disability, bipolar disorder.

JURISDICTION AND VENUE

1. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331,

1337, 1343, and 1345. This action is authorized and instituted pursuant to Section 107(a) oft_he

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

reference Section 706(0(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42

U.S.C. § 2000e-5(f)(l) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991,42

U.S.C. § 1981. 2. The employment practices alleged to be unlawful were committed within the
.~urisdiction of the United States District Court for the Eastern District of Missouri, Eastern Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S,C. § 12117(a), which incorporates by reference Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(1)(1) and (3). 4. At all relevant times, Defendant Apria has continuously been a Delaware Corporation doing business in the State of Missouri and has continuously had at least fifteen (15) employees. 5. At all relevant times, Defendant Apria has continuously been an employer in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C. § 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h). 6. At all relevant times, Defendant Apria has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, the Charging Party filed a charge with the Commission alleging violations of Title I of the ADA by Defendant
2

Apria. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Since at least January, 2001, Defendant Apria engaged in unlawful employment
practices at its St. Louis, Missouri location, in violation of Section 102(a) and (b) of Title I of the ADA, 42 U.S.C. § I2112(a) and (b), by terminating the Charging Party because of her disability on or about February 25, 2002.
9. The effect of these actions by Defendant Apria has been to deprive the Charging Party of equal employment opportunities and otherwise adversely affect her status as an employee because of her disability.
10. The unlawful employment practices engaged in by Defendant Apria were done with malice or reckless indifference to the federally protected rights of the Charging Party.
WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Apria, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice that discriminates on the basis of disability; B. Order Defendant Apria to institute and carry out policies, practices, and programs that provide equal employment opportunities for qualified individuals with disabilities, and that eradicate the effects of its past and present unlawful employment practices; C. Order Defendant Apria to make the Charging Party whole, by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to reinstatement of the Charging Party; D. Order Defendant Apria to make the Charging Party whole by providing

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

practices described in paragraph 8 above in amounts to be determined at trial;

E. Order Defendant Apria to make the Charging Party whole by providing

compensation for past and future nonpecuniary losses resulting from the unlawful employment

practices described in paragraph 8 above, including compensation for emotional pain, suffering,

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

F. Order Defendant Apria to pay the Charging Party punitive damages for its

malicious and reckless conduct, in amounts to be determined at trial;

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

interest; H.

Award the Commission its costs incurred in this action.

JURY TRIAL DEMANDED

The Commission requests a jury trial on all questions of fact raised in its Complaint.

Respectfully submitted,
ERIC S. DREIBAND General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

G. JO N pN
Regional Attorney ~
DONNA L. ttARPEP~ Supervisory Trial Attorney
BARBARA A. SEELY Supervisory Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office Robert A. Young Federal Bldg. 1222 Spruce Street, Room 8.100 St. Louis, MO 63103 (314) 539-7914 ATTORNEYS FOR PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
5

 
 Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 1 of 12
fite Date: 0312412005 Case: 4:04-cv-00443-CAS EEOC v. Apria Healtheare Group, Inc. Doc#: 39 .1 p: 1 ofl2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DMSION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
PlaintiCf;
v.
APRlA HEALTHCARE GROUP, INC., Defendant.

) } ) )
) Civil Action No. 04CV00443CAS
) ) ) ) )

CONSENT DECREE

Plaintiff Equal Employment Opportunity Commission (EEOC) has instituted this action alleging that Defendant Apria Healthcsre Group, Inc. (Apria Healthcare Group) tenninated Dawn Ayers because of her disability, bi-polar disorder, in violation ofTille I ofthe Americans with Disabilities Act of 1990,42 U.S.C. § 12101 et seq. (ADA). Apria Healthcare Group has filed an answer to this action denying the allegations ofEEOC's complaint. For purposes ofsettlement and compromise only, the parties have advised the Court that they wish 10 resolve the instant controversy without the expense, delay and burden of further litigation;
THEREFORE. it is the rmding of this Court, made on the pleadinga and on the record as a whole and upon agreement of the parties, that: (i) IbiB Court has jurisdiction oYer the parties to and the subject matter of this anlion, (ii) the requirements ofthe ADA will be carried out by the implementation of this Decree, (iii) this Decree is intended to and does resolve all matters in controversy in this lawsuit emong the parties, and (Iv) the terms of this Decree constitute a litir and equitable settlement of all issues in this lawsuit

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 2 of 12
File Date: 03124/2005 Case: 4:04-cv-00443-CAS EEOC v, Apria Healthcare Group,lnc, Ooc#:39.lp:2ofI2
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED 8S follows: I. NON-DISCRIMINATION
I.. In all matters arising from or relating to employment, Apria Healthcare Group and its officers, agents. employees. successors. and assigns, and all of those in active concert or participation with them. or any oftbem. shall not engage ill any employment practice which unlawfully discriminates against an employee or applicant tmder the ADA. Prohibited discrimination includes. but is not limited to:
a, refusing to hire or rehire a qualified individual with a disability because of hislber disability;
b, refusing to provide a reasonable accommodation to a qualified individual with a disability;
c, discharging a qualified individual with a disability because oChislher disability;
d. nUlintaining any practice or policy that violates the ADA by depriving or tending to deprive any individual ofemployment opportunities because of sucb individual's disability;
e. discriminating against persons on the buis oftheir disabilities in the terms and conditions oftbeir employment; and,
£. making disability related pre-empJoyment Inquiries.
n. NON-RETALIATION
2. April!. Healthcare Group, ils officers, agents, employees, successors, assigns. and all those in active concert or participation with them, or any oCthem, shall not engage in reprisal
2

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 3 of 12
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or retaliation of any kind against any person because such person: a. opposed any practice made unlaw1\ll under the ADA; b. filed a charge of discrimination with the Commission or a state agency or testified or participated in any manner in any investigation, proceeding, or hearing under the ADA: c. requested and/or rilceived relief in acconlance with this Consent Decree; d. participated in any manner in this action or in the investigation giving rise to this action; or e. asserted any right$ under this Consent Decree.
III. PAYMENT TO CHARGING PARTY DAWN AYERS 3. Within fifteen (IS) days after this Decree is approved by the Court, Apria
Healthcare Oroup will forward to Dawn Ayers payments in the total sunl of S60,OOO.OO (sixty thousand dollars and no cenls) as follows:
a. A payment in the gross amount ofSS,ooo.oo (five thousand dollars and no cents) on the Commission's claim for Dawn Ayers' backpay. less only any mandatorY deductions for the employee's portion of FICA and her applicable federal and state income tax wilbholdings in acconlance with Dawn Ayers' most current Form W4 provided to Aprla Heallbcare, and for which payment Apria Healthcare Oroup shall issue to Dawn Ayers a Form W·2; and
b. A payalent in the gross amount of 555,000.00 (fifty five thousand dollars and no cents) on the Commission's claims for Dawn Ayers' emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, and for which payment
3

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 4 of 12
File Date: 0312412005 Case: 4:04-cv-00443-CAS EEOC v. Apcia Healthcare Group, Inc. Doc #: 39 .I p: 4 ofl2
Apria Healthc~ Group shall issue to Dawn Ayers a Fonn 1099. 4. Apria Healthcare Group will fOrward 10 Dawn Ayers, with the checks described in paragroph 3 above, an itemized statement ofwithholdings for each l\IlIount withheld, including the employee shan: ofFICA and the applicable f!:deral and state income withholdings from the amowlt allocated as bacltpay. IV. INJUNCTIVE RELIEF 5. Within 30 days after entry ofthis Decree, Apria Healthcare Group will send Dawn
Ayers a leiter ofapology in the limn attached as Exhibit I, signed by Ms. Ayers' fbnner
supervisor and Apria Healthcan: Group's pn:acnt Region Infusion Manager, Tricia Lacavich. 6. Within 30 days after entry of this Decree, Apria Healthcan: Group will send Dawn
Ayers a letter ofn:ference in the fonn attached as Exhibit 2, signed by Ms_ Ayers' former supervisor and Apria's pment Region Infusion Manager, Tdcia Lacavich.
7. Within 30 days after cntryofthis Decree, Apria Healthcan: Group will n:move from any file bearing Dawn Ayers' name, and from any file retrievable by her name, any document reflecting that she filed a charge ofdiscrimination, gave testimony or otherwisc assisted the government in the prosecution ofthls lawsuit. In addition, Apria Healthcare Group shall n:move all documents that contain any information concerning Ms. Ayers' disability and any discussion then:of, along with all documents that contradict in any way Exhibits I and/or 2. All documents n:moved shall be placed in a sealed file that will held for sa Ions sa the curn:nt document retentioll policies of Apria Healthcare Group require, or fbr the term oftbis De!;TCe plus 2 months, whichever is longer, and then destroyed.
4

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 5 of 12
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V. POSTING AND NOTICES 8. Aplia Healthcan: Group will post and cause to remain posted the posters required
to be displayed in the workplace by Commission Regulations, 29 C.F.R. § 1601.30. 9. Aplia Heslthcare GIOUp will post and cause to remain posted copies of the notice
attached as Exhibit 3 in locations publicly visible to all employees in the Greater St. Louis Metropolitan Area, during the tenn of this Decree. VI, MONITORING AND REPORTING
10. Within thirty (30) days after this Decree is approved by the Court, Aprin Healthcare Group will forward to the Commission's Regional Attorney ill its St. Louis District Office copies of the checks and statement of withholdings forwarded to Dawn Ayera as described in paragraphs 3 and 4 above
II. Within sixty (60) days after this Decree is approved by the Court, Apria Heslthcale Group will forward to the Commission's Regional Attorney in its St. Louis District Office a letter signed by or 011 behalf of its Director of Employee Relations, Kathy Klein, stating thst it has complied with the requirements ofparagraphs S, 6 and 7, describing the manner and dates on which such compliance was effected, and attaching copies of Exhibits land 2.
12. Within forty-five (4S) days after this Decree is approved by the Court, Apria Heslthcare Group will prepare and submit to the Commission's Regional Attomey in its SI. Louis District Office a letter signed by its Director of Employee Relations, Kathy Klein, stating that the notices have been posted as required by paragraphs 8 and 9 above.
13. On a scmi-annual basis, Apria HeaJthcare Group will prepare and submit to the Commission's Regional Attorney in its St. Louis District Office a list ofall individuals who claim
s

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 6 of 12
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a disability who have been terminated or denied an accommodation sought under the ADA at locations in the Greater St. Louis Metropolitan Area during the preceding 6 (six) months. This list will include a brief description of the circumstances. including the position held by the employee at issue, any job action taken or denied, including any accommodation sought and denied; date of job action taken or denied; reason for job action taken; and name of each manager or supervisor involved ill relevant job action decision. If no individuals have been terminated or denied an accommodation sought under the ADA, Apria Healthcare Group will affirmatively inform the Commission's Regional Attorney in its St. Louis District Office that no person has been affected as described in this paragraph.
14 At any time during the term ofthis Decree, the Commission's Regional Attorney in its St. Lollis District Office may request linm Apria Healthcare Group a report, including supporting documentation, regarding Apria Healthcare Group's continued compliance with any term of this Decree. Apria Healthcare Group will provide such reporta, as requested, within a reasonable amount of time, not to exceed thirty (30) days after the request is ntade. VIJ. GEOGRAPHICAL SCOPE OF DECREE
IS Except as otherwise specified in this Decree, the terms of this Decree apply to all Apria Healthcarc Group locations in the Greater St. Louis Metrcpolitan Area. VJJl. TERM AND EFFECT OF DECREE
16. By entering into this Decree the parties do not intend to resolve any charges of discrimination currenlly pending before the Commission other than the charge that crested the procedural foundation for the complaint in this case.
17. This Decree will be binding upon the parties hereto, their successors and assigns.
6

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 7 of 12
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18. This Decree \Viii be for a period of two (2) years and can be ex:tended for good cause. During the Decree's term the Court \Viii retain jurisdiction of this cause for purposes of compliance.
19. This Consent Decree shall not be deemed as an admission by Apria Healthcare Group of any liability or unlawful conduct.
20. Each party will bear its own atlonleYS' feos and costs.
7

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 8 of 12
File Date: 03/2412005 Case: 4:04-cv-00443-CAS EEOC v. Apria Healthcare Group, Inc. Doc #: 39 .I p: 8ofl2
BY CONSENT: FOR PLAINTIFF: ERIC S. DREIBAND General Counsel JAMESL.LBE Deputy General CO\II'ISC1 GWENDOLYN YOUNG REAMS
AlI8CX:iatc General Cou
Supervisory Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISS[ON St Louis Disbict Offlc;e 1222 Spruce St, Room 8.100 St. Louis, MO 63103 (314) 539-7914 (phono) (314) 539-1895 (fax) robqtJobnson@eeoc,iOY
donna,hYl!"'@mwzov
bprbara,"""'fi1Mns,gpy
~
Di=lOr of 6mployee Rolaliona end Risk Management Apria BaltOOaro Gtoup
8

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 9 of 12
File Date: 0312412005 Case: 4:04-cv·00443·CAS EEOC v. Apria Healthcare Group, Inc. Doc#: 39 .I p: 90fl2
Attorney fur Apria Hcallhcare Group JACKSON LEWIS LLP Attorneys at Law 320 West Ohio Street, Suite 500 Chicago. Illinois 60610 (312) 787-4949 (phone) (312) 787-4995 (fax) Arrpyor@jackSQDlewis.com Pattenp@jacksonlewjll.cQm SOO.QDERED:
Date I l
9

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 10 of 12
File Date: 03/24/2005 Case: 4:04·cv..IJ0443·CAS EEOC v. Apria Healtheare Gr"up, Inc. Doc #: 39 .1 p: 10 of 12
ON COMPANY LEITERHIAD EXHIBIT I
Date Ms. Dawn Ayers 1370 Dartmouth CI. St. Charles, MO 63303 Dear Ms. Ayers:
Apria Healthcare Group, Inc. rellfCllS the circum5ta1tces under which your employment with the Company ended. You performed your assignments well. We wish you success in your futw:e endeavollI.
Sincerely.
Tricia 1... Laoavich, RN BSN Region Infusion Mattager

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 11 of 12
File Date: 0312412005 Case: 4:04·cv-00443.-CAS EEOC v. Apria Healthcare Group, Inc. Doc #: 39 .1 p: 11 ofl2

ON COMPANY LElTERHEAD

EXHIBITl

Date

To Whom it May Concern:
Dawn Ayers was hired by Apria HealthcareOroup,lnc. on June 14,2001. as a temporary employee in the position ofInaIJfllJlee Verification Clerk at the Company's St Louis. Missouri facility. Herjob perfOnnance was very good and, as a mull, we hired her as B regular full·time employee on September 28. 2001 in the position ofQuality Assurance Coordinator in the Infusion Department. She held thst position until she left the Company in February 2002.
As Quality AssUlllnCII Coordinator. Ms. Ayers was responsible fur ensuring that PllplllWork and data enay was completed accurately. that payment for services and equipment was
guaranteed prior to delivery and thst riwenue was recorded appropriately. Herjob duties required her to prepare reports, communicate with clients and insul1l11Ce companies, review and prepare paperwork and enter data into the computer. Ms. AYf/fS perfonned her assignments well.
We wish Ms. Ayers well in her future endeavors.

Sincerely.

Tricia L. Lacavich, RN BSN Region Infusion Manager

Case 4:04-cv-00443-CAS Document 40 Filed 03/31/2005 Page 12 of 12
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ON COMPANY LETTERHEAD EXHIBIT 3
NOTICE REGARDING FEDERAL ANTI-DISCRIMINAnON LAWS
This Notice is posted by agreement between Apria Healthcare Group. Inc. (Apria Healthcare Group) IlJId the Equal Employment Opportunity Commission (EEOC).
Federnllaw prohibits discrimination against any employee because ofmce, national
origin. color, religion. sex, disability or age (forty and over) with reapClCt to hiring. promotion, firing. compensation, or other terms, conditions or privileges ofemployment
Federal law also prohibits retaliation against persons who complain ofor oppose prnclicea they believe are discriminatory on the basis of race, national origin, color. religion, sex,
disability or age (forty and over). and it prohibits retaliation against persons who file chargea with the EEOC, or who participate in or cooperate with an EEOC investigation.
Apria Healthcare Group is committed to supporting and complying with such federal law in all rCBpClCts and will not take llJIy action against employees because they have exercised their rights under the law. SpClCifically. Apria Healthcare Group will not tolerate discrimination in employment, nor will it tolerate retaliation against any employee for exercising rights under law.
Employees and job applicants should feel free to report instances ofdiscriminatory
treatment to their supervisor, a manager. or Apria Healthcare Group's employee hotline [877· COMPLY9] at any time. Apria Hcalthcare Group has established policiea and procedures to promptly inveatigate any such reports and to protect the person making the reports from retaliation, including retaliation by the person allegedly committing acts of the discrimination.
Employees andjob applicants are also free to make complaints about employment
discrimination to the Office of the Regional Attomey, United States Equal Employment Opportunity Commiaaion, St. Louis District Office, 12.22 Spruce St., Room 8.100, St. Louis. MO 63103 (Attention: Donna L. Harper, Supervisory Trial Attorney) or by telephone to (314) 5397914 or e-mail to donna.h!l!l!er@!;eoc.gAv.

 
 E.E.O.C. v. Apria Healthcare Group, Inc., 222 F.R.D. 608 (2004)

222 F.R.D. 608 United States District Court,
E.D. Missouri, Eastern Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
APRIA HEALTHCARE GROUP, INC., Defendant.
No. 4:04–CV–443 CAS. | July 28, 2004.
Attorneys and Law Firms
*609 Barbara A. Seely, Donna L. Harper, Robert G. Johnson, EEOC, St. Louis, MO, for Plaintiff.
Paul Patten, Robert E. Arroyo, Jackson and Lewis, Chicago, IL, for Defendant.
Opinion
MEMORANDUM AND ORDER
SHAW, District Judge.
This matter is before the Court on defendant Apria Healthcare Group, Inc.’s motion to dismiss. Plaintiff the Equal Employment Opportunity Commission opposes the motion. For the following reasons, the Court will deny the motion to dismiss.
Background. This is an employment discrimination action filed by the Equal Employment Opportunity Commission (“EEOC” or “plaintiff”) against Apria Healthcare Group, Inc. (“Apria”), alleging that Apria violated the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. (“ADA”) when it failed to make reasonable accommodations for and discharged a former quality assurance coordinator because of her disability, bipolar disorder. The complaint seeks injunctive and other relief against Apria and backpay and other damages for the discharged employee.
Apria moves to dismiss the complaint on two grounds. First, it moves to dismiss the portion of the complaint which seeks damages for the former employee, who it identifies as Dawn Ayers, on the basis that Ms. Ayers filed for protection under Chapter 13 of the U.S. Bankruptcy Code and did not list her EEOC charge of

discrimination in the bankruptcy schedules. Second, it moves to dismiss the complaint for failure to join a necessary party, the trustee in Ms. Ayers’ bankruptcy.
Legal Standards.
Rule 12(b)(6). The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint. A complaint shall not be dismissed for failure to state a claim for which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim entitling her to relief. Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of her claim. Id.; see also Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). When ruling on a motion to dismiss, this Court must take the allegations of the complaint as true and liberally construe the complaint in a light most favorable to the plaintiff. Kottschade v. City of Rochester, 319 F.3d 1038, 1040 (8th Cir.2003).
Rule 12(b)(7). [1] “When a person needed for just adjudication (as set forth in Rule 19 [, Fed.R.Civ.P.] ) has not been included in an action, a party may move for dismissal under Rule 12(b)(7). Rather than dismiss the action, the court will usually allow the party to be joined, or grant the dismissal conditioned on reinstating the case once joinder of the absent party is secured. If the party is considered ‘indispensable’ to the action and cannot be joined, then dismissal is proper.” 2 James W. Moore, et al., Moore’s Federal Practice, § 12.35 (3d ed.2004). The party *610 moving for dismissal under Rule 12(b)(7) has the burden to show that the absent person should be joined under Rule 19. Id.; West Peninsular Title Co. v. Palm Beach County, 41 F.3d 1490, 1492 (11th Cir.), cert. denied, 516 U.S. 932, 116 S.Ct. 338, 133 L.Ed.2d 237 (1995).
Rule 19(a), Fed.R.Civ.P., requires joinder of a person amenable to service whose joinder will not destroy jurisdiction if:
(1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a
1

E.E.O.C. v. Apria Healthcare Group, Inc., 222 F.R.D. 608 (2004)

practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

Discussion. [2] [3] In support of its motion to dismiss, Apria asserts that the charging party on whose behalf the EEOC has filed suit, Dawn Ayers, filed a Chapter 13 Voluntary Petition for Bankruptcy on July 3, 2003, but did not include her pending EEOC administrative charge in the Statement of Financial Affairs filed in the bankruptcy case.1 Apria argues that this omission from Ayers’ bankruptcy filing merits dismissal of the portion of this action which seeks damages on her behalf, citing Richardson v. United Parcel Service, 195 B.R. 737, 739 (E.D.Mo.1996). In the alternative, Apria asserts that this case should be dismissed for lack of standing because any assets derived from it would belong to the bankruptcy trustee, citing Harris v. St. Louis University, 114 B.R. 647 (E.D.Mo.1990).

1

Apria attaches to its motion as exhibits Ms. Ayers’s

charge of discrimination, the petition filed in Ms.

Ayers’ Chapter 13 bankruptcy case, and the Statement

of Financial Affairs filed in the bankruptcy. In its

memorandum in opposition, the EEOC asserts that

because Apria attached matters outside the pleadings to

its motion to dismiss, the motion must be considered as

a motion for summary judgment, citing Rule 12(b),

Fed.R.Civ.P., and is thus premature in this newly-filed

case. The Court disagrees. “When deciding a motion to

dismiss, a court may consider the complaint and

documents whose contents are alleged in a complaint

and whose authenticity no party questions, but which

are not physically attached to the pleading.” Kushner v.

Beverly Enters., Inc., 317 F.3d 820, 831 (8th Cir.2003)

(quotation marks omitted). In addition, a district court

may take judicial notice of public records and may

consider them on a motion to dismiss. Faibisch v.

University of Minnesota, 304 F.3d 797, 802–03 (8th

Cir.2002). The charge of discrimination is alleged in

the complaint in this case and therefore may be

considered on a motion to dismiss, and the bankruptcy

petition and schedules are public records which may

also be considered.

The EEOC responds that it is the plaintiff in this action, not Ms. Ayers, and that it sues in the public interest as recognized by the Supreme Court in General Telephone Co. of the Northwest, Inc. v. Equal Employment Opportunity Comm’n, 446 U.S. 318, 326, 100 S.Ct. 1698,

64 L.Ed.2d 319 (1980). The EEOC states that the Supreme Court has declared that once the EEOC sues, it is the master of its own case. Equal Employment Opportunity Comm’n v. Waffle House, Inc., 534 U.S. 279, 291, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). Plaintiff states that in Waffle House, the Supreme Court refused to stay or dismiss the EEOC’s lawsuit when the employee for whom suit was brought was required to arbitrate her claims under the Federal Arbitration Act. Plaintiff argues the instant situation is analogous: it is not a party to or bound by the bankruptcy proceedings and its lawsuit should not be dismissed because the employee is a party to the bankruptcy.
The EEOC states that the cases cited by Apria are not controlling: In Harris v. St. Louis University, the district court dismissed a Title VII lawsuit because the plaintiff lacked standing to prosecute her claim, as she had earlier filed for bankruptcy under Chapter 7 of the Bankruptcy Code without disclosing that she had a potential claim of unlawful discharge, and the claim belonged to the trustee, not to plaintiff. EEOC states that Harris is distinguishable because (1) the EEOC has statutory authority to pursue the case, and (2) Harris was a Chapter 7 bankruptcy, which results in the discharge of *611 debts, as opposed to a Chapter 13 reorganization proceeding such as the one at issue here.
The EEOC states that in Richardson v. United Parcel Service, the debtor filed a Chapter 13 reorganization petition but failed to list his potential employment discrimination cause of action in his Schedule of Assets. Nonetheless, the district court denied the defendant’s motions to dismiss for lack of standing and jurisdiction, and instead referred the case to the bankruptcy court. Plaintiff argues that as a result, Richardson is not authority supporting dismissal of its action. Plaintiff also argues that because it is not a party to Ayers’ bankruptcy, and Ayers is not a party to this action, referral to the bankruptcy court is not required under Eastern District Local Rule 9.01(B)(1) and in fact would be improper.
With respect to Apria’s claim that plaintiff has failed to join a necessary party, EEOC responds that Apria has not cited any precedent in which an EEOC lawsuit has been dismissed for failure to name the bankruptcy trustee as a necessary party, and notes that an EEOC lawsuit may proceed independent of a bankruptcy action even when a party to the suit files for bankruptcy, citing Equal Employment Opportunity Comm’n v. Rath Packing Co., 787 F.2d 318, 325–26 (8th Cir.), cert. denied sub nom Rath Packing Co. Creditors’ Trust v. Equal Employment Opportunity Comm’n, 479 U.S. 910, 107 S.Ct. 307, 93 L.Ed.2d 282 (1986).
As an initial matter, the Court agrees with the EEOC that Apria has submitted no authority to support its assertions that (1) damage claims in an EEOC-filed discrimination
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E.E.O.C. v. Apria Healthcare Group, Inc., 222 F.R.D. 608 (2004)

action may be dismissed on judicial estoppel principles based on the non-party charging party’s failure to disclose the underlying administrative charge in bankruptcy proceedings, and (2) the bankruptcy trustee is a necessary party to an EEOC action where the charging party has filed for protection under Chapter 13 of the Bankruptcy Code. Apria’s failure to support its assertions alone warrants denial of the motion, and the Court in independent research has not found any cases which support these assertions. Nonetheless, the Court finds it appropriate to discuss aspects of the merits of the motion to dismiss.
A. Trustee as Necessary Party. [4] The Court will address Apria’s alternative argument first. Underlying Apria’s assertion that the bankruptcy trustee is a necessary party to the EEOC’s action is the premise that a Chapter 13 debtor-in-possession lacks standing to bring suit in her own name on behalf of the bankruptcy estate. The Eighth Circuit Court of Appeals has not addressed this question but at least three other circuits have answered it in the affirmative. See Cable v. Ivy Tech State College, 200 F.3d 467, 472–74 (7th Cir.1999); Olick v. Parker & Parsley Petroleum Co., 145 F.3d 513, 515 (2d Cir.1998) (Chapter 13 debtor retains standing to litigate causes of action that, outside of bankruptcy, would belong to the debtor); Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1209 n. 2 (3rd Cir.1991). These rulings are grounded on the legislative history specific to Chapter 13 and the rationale that a trustee’s participation is not needed to protect the rights of Chapter 13 creditors, because creditors’ recovery in Chapter 13 is drawn from a debtor’s earnings rather than from assets of the bankruptcy estate. See In re Dawnwood Properties/78, 209 F.3d 114, 116 (2d Cir.2000).
The Eighth Circuit has discussed the nature of a Chapter 13 bankruptcy estate, significantly noting that creditors are paid from future earnings instead of assets. Handeen v. Lemaire, 112 F.3d 1339, 1349 (8th Cir.1997). The Court stated that as a result, a debtor who meets specified requirements is permitted to “shield his property from seizure or liquidation,” id., and unless the repayment plan or bankruptcy court provides otherwise, the debtor retains custody of his possessions. See 11 U.S.C. § 1306(b). The Eighth Circuit also observed that it is “the debtor’s exclusive prerogative to file a proposed repayment plan, ... and he enjoys many of the powers normally reserved to a bankruptcy trustee, see [11 U.S.C.] § 1303.” Handeen, 112 F.3d at 1349 (emphasis added). The Court concluded that “the debtor exercises *612 significant control over his Chapter 13 estate.” Id.
[5] Based on the Eighth Circuit’s statements in Handeen, this Court believes the Eighth Circuit would join those courts which hold that a Chapter 13 debtor-in-possession

has standing to bring suit in her own name on behalf of the bankruptcy estate. As a result, the Court rejects Apria’s contention that the Chapter 13 trustee is a necessary party to this action.
As Apria observes, this Court has stated in dictum that a Chapter 13 debtor lacks standing to pursue an employment discrimination action in her own name. See Richardson v. United Parcel Service, 195 B.R. 737, 739 (E.D.Mo.1996) (J. Gunn). The Richardson case, however, supported its conclusion by citing two decisions involving the standing of a Chapter 7 debtor, without discussing the difference between Chapter 7 and Chapter 13 debtors, or the difference in how the estate property is held in different bankruptcy proceedings.2 Thus, Richardson does not recognize the control a Chapter 13 debtor has over her assets. The reasoning of Richardson has been rejected or questioned by several other federal courts. Stansberry v. Uhlich Children’s Home, 264 F.Supp.2d 681, 686 (N.D.Ill.2003), citing Donato v. Metropolitan Life Ins. Co., 230 B.R. 418, 425–26 (N.D.Cal.1999) (finding more persuasive the reasoning of other courts holding that Chapter 13 debtors-in-possession do have standing to bring suit); In re Bowker, 245 B.R. 192, 198–99 (Bankr.D.N.J.2000) (holding that debtor and trustee have concurrent standing to sue on behalf of the estate); and In re Griner, 240 B.R. 432, 435 n. 1 (Bankr.S.D.Ala.1999) (calling Richardson decision a “mistake” because it cited to Chapter 7 case law). This Court therefore declines to extend the dictum in Richardson to the separate situation presented by the instant case.

2

A Chapter 7 bankruptcy proceeding is a liquidation

bankruptcy in which the debtor’s assets are collected in

an estate and distributed by a trustee to the creditors.

The trustee in a Chapter 7 bankruptcy case is the sole

representative of the estate. 11 U.S.C. § 323(a). The

debtor in a Chapter 7 bankruptcy case is required

pursuant to 11 U.S.C. § 541(a)(1) to schedule as assets

“all legal and equitable interests of the debtor in

property as of the commencement of the case.”

B. Judicial Estoppel. [6] Apria also asserts that the EEOC is judicially estopped from seeking monetary damages on behalf of charging party Dawn Ayers, because Ms. Ayers did not disclose her EEOC charge of discrimination in her bankruptcy schedules. In support of this assertion, Apria cites Richardson and Harris v. St. Louis University, 114 B.R. 647 (E.D.Mo.1990) (J. Limbaugh).
In Richardson, this Court declined to find that the plaintiff was judicially estopped from pursuing his employment discrimination action, and instead referred the case to the bankruptcy court. 195 B.R. at 739–40. Therefore
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E.E.O.C. v. Apria Healthcare Group, Inc., 222 F.R.D. 608 (2004)

Richardson does not support Apria’s motion to dismiss the EEOC’s claim for monetary damages on behalf of Ms. Ayers.
In Harris, this Court held that a plaintiff who filed an employment discrimination action three months after her debts were discharged in a Chapter 7 bankruptcy proceeding lacked standing to bring the action. The Court found that the cause of action necessarily existed while plaintiff was in bankruptcy although plaintiff did not include it in her bankruptcy schedules, and only the Chapter 7 bankruptcy trustee would have the authority to prosecute it. Id. at 648. As a result, the Court dismissed the complaint for lack of standing. Id. at 649. Harris is readily distinguishable and does not support dismissing the claim for monetary damages in this case because Harris involved a Chapter 7 bankruptcy, in which all property and claims of the debtor belonged to the trustee.
The Eighth Circuit has stated that the purpose of judicial estoppel is to “protect the integrity of the judicial process.” Total Petroleum, Inc. v. Davis, 822 F.2d 734, 738 n. 6 (8th Cir.1987). The Court stated that judicial estoppel is not appropriate unless the judicial forum or process has been abused, and expressed reluctance to apply judicial estoppel in the absence of a knowing misrepresentation or fraud on the court. Id. District courts in other jurisdictions have held that a debtor’s failure to disclose a claim as an asset in bankruptcy may preclude later *613 assertion of that claim under the doctrine of judicial estoppel. See, e.g., Ryan Operations G.P. v. Santiam–Midwest Lumber Co., 81 F.3d 355, 364, n. 5 (3rd Cir.1996) (refusing to find requisite intent to deceive can be inferred from mere fact of nondisclosure in bankruptcy proceeding, but citing cases in which other courts have so inferred); see also De Leon v. Comcar Indus., Inc., 321 F.3d 1289, 1291 (11th Cir.2003) (holding that judicial estoppel operated to bar a plaintiff from asserting an employment discrimination claim he had not disclosed in his Chapter 13 bankruptcy proceeding, concluding that a financial motive existed to secrete assets under Chapter 13 as well as Chapter 7, “because the hiding of assets affects the amount to be discounted and repaid,” and noting that plaintiff had not amended his schedules to add after-acquired assets).3

3

This Court is not convinced that a Chapter 13

debtor-in-possession has a motive to secrete assets,

given that the creditors are repaid out of the debtor’s

income. The Eleventh Circuit in De Leon did not cite

any authority in support of this proposition.

The Court can find no basis from which to conclude that Ms. Ayers has abused a judicial forum or process, or

practiced a knowing misrepresentation or fraud on the court. See Total, 822 F.2d at 738 n. 6. The distinction between Ms. Ayers’ situation and the plaintiff in De Leon and other cases cannot be overstated: Ms. Ayers did not file this action, is not a party to this action, and had no control over the EEOC’s decision to bring this action. Therefore Ms. Ayers cannot be said to have taken any action to warrant the application of judicial estoppel. Moreover, Ms. Ayers has now amended her bankruptcy schedules to include the instant lawsuit. Apria protests that Ms. Ayers did not include her EEOC charge of discrimination in the original schedules and therefore was trying to hide the charge. Under the circumstances of this case, the Court cannot find sufficient evidence of an intent to practice a knowing misrepresentation or fraud based on the mere failure to list an EEOC charge in the bankruptcy proceeding. Cf. Ryan, 81 F.3d at 364; Taylor v. Comcast Cablevision of Ark., Inc., 252 F.Supp.2d 793, 799 (W.D.Ark.2003) (refusing to dismiss ADA action because plaintiff failed to include his EEOC administrative charge in his Chapter 7 bankruptcy where plaintiff relied on the advice of attorneys who did not direct him to make the disclosure and sought leave to reopen his bankruptcy estate, the results of which could benefit his creditors).
Because the Court has found no authority which would preclude the EEOC from seeking damages on behalf of Ms. Ayers, and concludes that Ms. Ayers herself has not practiced a knowing misrepresentation or fraud on the courts, it declines to apply judicial estoppel. As a result, the Court concludes that Apria’s motion to dismiss the EEOC’s claims for monetary damages on behalf of Ms. Ayers should be denied.
Conclusion. For the foregoing reasons, the Court concludes that defendant Apria’s motion to dismiss should be denied in all respects.
Accordingly,
IT IS HEREBY ORDERED that defendant Apria Healthcare Group, Inc.’s motion to dismiss is DENIED. [Doc. 6] Defendant shall file its answer to the complaint within the time allowed by Rule 12(a)(4)(A), Fed.R.Civ.P.
Parallel Citations
15 A.D. Cases 1522, 28 NDLR P 264
	  

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E.E.O.C. v. Apria Healthcare Group, Inc., 222 F.R.D. 608 (2004) 5

 
 MOED - CM/ECF (LIVE) - Docket Report

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ADR, CLOSED, PROTO, TRCK2
U.S. District Court Eastern District of Missouri (LIVE) (St. Louis) CIVIL DOCKET FOR CASE #: 4:04-cv-00443-CAS

EEOC v. Apria Healthcare Group, Inc. Assigned to: Honorable Charles A. Shaw Cause: 42:12101 Americans with Disabilities Act

Date Filed: 04/14/2004 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

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

Donna L. Harper SEDEY HARPER, P.C. 2711 Clifton Avenue St. Louis, MO 63139 314-773-3566 Fax: 314-773-3615 Email: dharper@sedeyharper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G. Johnson EEOC 1222 Spruce Street Room 8.100 St. Louis, MO 63103 314-539-7910 Fax: 314-539-7895 Email: robert.johnson@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

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Apria Healthcare Group, Inc.

represented by Paul Patten JACKSON AND LEWIS 320 W. Ohio Street Suite 500 Chicago, IL 60610 312-787-4949 Fax: 312-787-4995 Email: pattenp@jacksonlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Arroyo JACKSON AND LEWIS 320 W. Ohio Street Suite 500 Chicago, IL 60610 312-787-4949 Fax: 312-787-4995 Email: arroyor@jacksonlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James M. Paul LATHROP AND GAGE 10 S. Broadway Suite 1300 St. Louis, MO 63102-1708 314-613-2500 Fax: 314-613-2550 Email: jpaul@lathropgage.com ATTORNEY TO BE NOTICED

Date Filed 04/14/2004
05/14/2004 05/14/2004 05/14/2004

#

Docket Text

1 COMPLAINT against defendant Apria Healthcare Group, Inc. Waivers issued 1, Consents issued 2, Disclosure of Corporate Interest issued to deft, Jury Demand,, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet # 2 Original Filing Form)(SAJ, ) (Entered: 04/14/2004)
2 MOTION for Leave to Appear Pro Hac Vice Paul Patten by Defendant Apria Healthcare Group, Inc. (GLF) Receipt S2004-7014 for $25.00 filing fee. (Entered: 05/14/2004)
3 MOTION for Leave to Appear Pro Hac Vice Robert Arroyo by Defendant Apria Healthcare Group, Inc. Receipt #S2004-007014 for $25.00 filing fee.(GLF) (Entered: 05/14/2004)
Receipt # S2004-007014 in the amount of $50.00 for ATTORNEY ADM. FEE PHV Paul A. PAtten, ATTORNEY ADM. FEE - PHVRobert E. Arroyo on behalf of PATTEN, PAUL A.. (CSW,) (Entered: 05/14/2004)

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05/17/2004
06/02/2004 06/03/2004 06/14/2004 06/14/2004
06/14/2004 06/14/2004 06/14/2004 06/16/2004
06/21/2004 07/01/2004 07/01/2004 07/16/2004

Docket Text ORDER re 2 MOTION for Leave to Appear Pro Hac Vice Paul Patten filed by Apria Healthcare Group, Inc., 3 MOTION for Leave to Appear Pro Hac Vice Robert Arroyo filed by Apria Healthcare Group, Inc. ; ORDERED GRANTED. Signed by Judge Audrey G. Fleissig on May 17, 2004. (MLR, ) (Entered: 05/17/2004)
4 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Defendant Apria Healthcare Group, Inc. Parent companies: None, Subsidiaries: None, Publicly held company: Yes,. (Patten, Paul) (Entered: 06/02/2004)
5 CJRA ORDER (jgw). Judge Audrey G. Fleissig termed. Case reassigned to Judge Charles A. Shaw for all further proceedings (MCB) (Entered: 06/03/2004)
6 MOTION to Dismiss Case by Defendant Apria Healthcare Group, Inc.. (Patten, Paul) (Entered: 06/14/2004)
7 MEMORANDUM in Support of Motion re 6 MOTION to Dismiss Case filed by Defendant Apria Healthcare Group, Inc.. (Attachments: # 1 Exhibit Ex. 1 Charge of Discrim.# 2 Exhibit Ex. 2 Ayers Ch. 13 Petition# 3 Exhibit Ex. 3 Ayers Statement of Fin. Int.)(Patten, Paul) (Entered: 06/14/2004)
8 NOTICE of Filing Exhibit with the Clerk's Office in paper format by Defendant Apria Healthcare Group, Inc. re 7 Memorandum in Support of Motion, (Patten, Paul) (Entered: 06/14/2004)
9 NOTICE of Filing Exhibit with the Clerk's Office in paper format by Defendant Apria Healthcare Group, Inc. re 7 Memorandum in Support of Motion, (Patten, Paul) (Entered: 06/14/2004)
10 NOTICE of Filing Exhibit with the Clerk's Office in paper format by Defendant Apria Healthcare Group, Inc. re 7 Memorandum in Support of Motion, (Patten, Paul) (Entered: 06/14/2004)
11 RULE 16 ORDER This case is assigned to Track: 2 Joint Scheduling Plan due by 7/21/2004. Telephonic Rule 16 Conference set for 8/5/2004 at 10:30 AM. Signed by Judge Charles A. Shaw on 6/16/04. (KXS, ) Modified on 6/17/2004 (KXS, ). (Entered: 06/16/2004)
12 MEMORANDUM in Opposition re 6 MOTION to Dismiss Case filed by Plaintiff Equal Employment Opportunity Commission. (Harper, Donna) (Entered: 06/21/2004)
13 REPLY to Response to Motion re 6 MOTION to Dismiss Case filed by Defendant Apria Healthcare Group, Inc.. (Attachments: # 1 Exhibit Lexis Case)(Patten, Paul) (Entered: 07/01/2004)
14 AMENDED DOCUMENT by Defendant Apria Healthcare Group, Inc.. Amendment to 13 Reply to Response to Motion. (Attachments: # 1 Exhibit Lexis Case# 2 Exhibit Lexis Case)(Patten, Paul) (Entered: 07/01/2004)
15 MEMORANDUM Memorandum For The Court by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Bankruptcy Court Docket #40# 2 Statement of Financial Affairs Amended)(Harper, Donna) (Entered: 07/16/2004)

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07/16/2004 07/16/2004 07/19/2004 07/20/2004
07/20/2004 07/20/2004 07/21/2004
07/28/2004
08/11/2004 09/08/2004
09/22/2004

16 MOTION to Amend/Correct Joint Motion To Amend Order Setting Rule 16 Conference by Plaintiff Equal Employment Opportunity Commission. (Harper, Donna) (Entered: 07/16/2004)
17 JOINT SCHEDULING PLAN by Plaintiff Equal Employment Opportunity Commission. Joint Proposed Scheduling Plan. (Harper, Donna) (Entered: 07/16/2004)
18 MOTION for Leave to File Response Memorandum by Defendant Apria Healthcare Group, Inc.. (Attachments: # 1 Exhibit Response to EEOC Memo# 2 Notice of Exhibit Filing)(Patten, Paul) (Entered: 07/19/2004)
Docket Text ORDER re: [Doc. 18], MOTION for Leave to File Response to Plaintiff EEOC's Memorandum, filed by Apria Healthcare Group, Inc.; ORDERED GRANTED. The Clerk of the Court shall file Apria's response, which is attached as an exhibit to the instant motion for leave. Signed by Judge Charles A. Shaw on July 20, 2004. (SMH) (Entered: 07/20/2004)
19 RESPONSE TO Plaintiff's Memorandum of Law re 15 Memorandum by Defendant Apria Healthcare Group, Inc.. (MRC, ) (Entered: 07/21/2004)
20 NOTICE of Filing Exhibit with the Clerk's Office in paper format by Defendant Apria Healthcare Group, Inc. with attached exhibit 1(JWJ, ) (Entered: 07/23/2004)
Docket Text ORDER re: [Doc. 16], MOTION to Amend Order Setting Rule 16 Conference filed by EEOC; ORDERED GRANTED. The Rule 16 telephone conference is rescheduled for Thursday, September 2, 2004 at 10:30 a.m. The Order Setting Rule 16 Conference otherwise remains in full force and effect. Signed by Judge Charles A. Shaw on July 21, 2004. (SMH) (Entered: 07/21/2004)
21 MEMORANDUM AND ORDER IT IS HEREBY ORDERED that deft Apria Healthcase Group, Inc.'s mtn to dismiss is DENIED (#6). Deft shall file its answer to the complaint within the time allowed by Rule 12(a)(4)(A), Fed. R. Civ. P. Signed by Judge Charles A. Shaw on 7/28/04. (KXS, ) (Entered: 07/28/2004)
22 ANSWER to Complaint by Apria Healthcare Group, Inc..(Arroyo, Robert) (Entered: 08/11/2004)
23 CASE MANAGEMENT ORDER This case is assigned to Track: 2 Motion to Join Parties due by 9/30/2004. Discovery Completion due by 5/31/2005. ADR Future Reference 12/9/2004. Dispositive Motions due by 6/29/2005. Jury Trial set for 10/11/2005 09:00 AM in Courtroom 12N before Honorable Charles A. Shaw. Pretrial Conference set for 10/6/2005 02:00 PM in Courtroom 12N before Honorable Charles A. Shaw. Pretrial Compliance due by 9/21/2005.Signed by Judge Charles A. Shaw on 9/8/04. (KXS, ) (Entered: 09/08/2004)
24 MOTION for Protective Order Agreed Motion For Protective Order by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order Stipulated Protective Order# 2 Exhibit #1 Undertaking Concerning Confidential Material)(Harper, Donna) (Entered: 09/22/2004)

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09/30/2004 11/13/2004 11/15/2004 11/17/2004 11/18/2004 11/24/2004 12/03/2004
12/09/2004
12/13/2004 12/15/2004 12/20/2004
01/11/2005

25 STIPULATED PROTECTIVE ORDER re:24 MOTION for Protective Order Agreed Motion For Protective Order filed by Equal Employment Opportunity Commission. Signed by Judge Charles A. Shaw on 9/30/04. (KXS, ) (Entered: 09/30/2004)
26 MOTION for Psychiatric Examination by Defendant Apria Healthcare Group, Inc.. (Attachments: # 1)(Patten, Paul) (Entered: 11/13/2004)
27 MOTION to file documents under seal by Defendant Apria Healthcare Group, Inc.. (KXS, ) (Entered: 11/16/2004)
Docket Text ORDER re 27 MOTION to file documents under seal filed by Apria Healthcare Group, Inc. ; ORDERED GRANTED. Signed by Judge Charles A. Shaw on 11/17/04. (KXS, ) (Entered: 11/18/2004)
28 MEMORANDUM in Support of 26 MOTION for Rule 35 Examination filed by Defendant Apria Healthcare Group, Inc. (FILED UNDER SEAL). (KXS, ) (Entered: 11/18/2004)
29 MEMORANDUM in Opposition re 26 MOTION for Psychiatric Examination filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1)(Harper, Donna) (Entered: 11/24/2004)
30 REPLY to Response to Motion re 26 MOTION for Psychiatric Examination filed by Defendant Apria Healthcare Group, Inc.. (Attachments: # 1 Exhibit Exh. 1# 2 Exhibit Exh. 2# 3 Exhibit Exh. 3# 4 Exhibit Exh. 4# 5 Exhibit Exh. 5# 6 Exhibit Exh. 6# 7 Exhibit Exh. 7# 8 Notice of Exhibit Filing)(Patten, Paul) (Entered: 12/03/2004)
31 ORDER REFERRING CASE to Alternative Dispute Resolution. This case is referred to: mediation Designation of Lead Counsel: Barbara A. Seely ADR Completion Deadline due by 2/7/2005. Designation of Neutral due by 12/19/2004.. Signed by Judge Charles A. Shaw on 12/9/04. (JWJ, ) (Entered: 12/09/2004)
32 ENTRY of Appearance by James M. Paul Defendant Apria Healthcare Group, Inc.. (Paul, James) (Entered: 12/13/2004)
33 NOTICE by Defendant Apria Healthcare Group, Inc. re 29 Memorandum in Opposition to Motion, 30 Reply to Response to Motion,, 26 MOTION for Psychiatric Examination December 28, 2004 Hearing on Motion for Rule 35 Examination: (Patten, Paul) (Entered: 12/15/2004)
34 Designation of Neutral by parties and ADR Conference Report by Plaintiff Equal Employment Opportunity Commission Neutral: Charles Elbert Date of Conference: February 4, 2005 time: 9:30 a.m. Location: Kohn Elbert Gianoulakis & Gilijum, LLP; One U.S. Bank Plaza, St. Louis, MO(Seely, Barbara) (Entered: 12/20/2004)
35 ORDER IT IS HEREBY ORDERED that Apria's Motion for Rule 35 Examination is DENIED.[Doc. 26]IT IS FURTHER ORDERED that at trial, the EEOC's evidence about Ms. Ayers'compensatory damages shall be limited to non-expert testimony of "garden variety emotional distress"which will not seek to establish that Apria caused Ms. Ayers psychiatric, psychological or physicalillness or injury.IT IS FURTHER ORDERED that at trial, the EEOC

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01/12/2005 02/23/2005 03/03/2005
03/24/2005 03/31/2005

shall not present evidence, argue orcomment in the presence of the jury that Dr. Pribor has not met with, examined or consulted Ms.Ayers, unless Apria "opens the door" for such disclosure. Signed by Judge Charles A. Shaw on 1/11/05. (KXS, ) (Entered: 01/11/2005)
36 NOTICE of Appointment of Neutral Neutral name: Charles Elbert, Neutral selected by parties, notice of appointment and order of referral mailed to neutral Elbert.(SAC, ) (Entered: 01/12/2005)
37 ADR COMPLIANCE REPORT by Neutral: Charles Elbert, Date of Conference: February 4, 2005, participated in good faith: yes, the parties DID achieve a settlement.(SAC, ) (Entered: 02/28/2005)
38 ORDER IT IS HEREBY ORDERED that the 10/11/05 trial setting is vacated and pending motions are denied without prejduice. IT IS FURTHER ORDERED that counsel shall file within 30 days of the date of this order a stipulation for dismissal, a motion for leave to voluntarily dismiss or a proposed consent judgment. Dismissal Paper(s) due by 4/1/2005.. Signed by Judge Charles A. Shaw on 3/3/05. (JWJ, ) (Entered: 03/03/2005)
39 MOTION for Settlement MEMORANDUM FOR THE COURT by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Consent Decree)(Harper, Donna) (Entered: 03/24/2005)
40 CONSENT DECREE - SO ORDERED (CAS), Terminate Case. Signed by Judge Charles A. Shaw on 3/31/2005. (MRC, ) (Entered: 03/31/2005)

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 EEOC LITIGATION SETTLEMENT REPORT - March 2005

http://www.eeoc.gov/litigation/settlements/settlement03-05.html

EEOC v. Apria Healthcare Group, Inc. No. 04CV00443CAS (D. Mo. March 31, 2005)
In this ADA suit, the St. Louis District Office charged Apria Healthcare Group, Inc., a provider of home healthcare products and services, with discharging charging party due to her psychiatric disability (bipolar disorder, mixed, rapid cycling). Defendant hired charging party for a temporary position in its St. Louis office and a few months later, in September 2001, converted her to full- time and promoted her to quality assurance coordinator. In late 2001 and early 2002, charging party missed some work because of problems with her medication. On January 9, 2002, charging party's supervisor spoke to her about the absences, and charging party told her she would need an accommodation under the ADA and agreed to obtain a written request from her doctor. The following day, charging party was acutely depressed and suicidal and left the office to go to the hospital. Thereupon her doctor requested a several-week leave of absence. On January 24, 2002, charging party brought her supervisor a release from her psychiatrist. Charging party phoned the supervisor daily, but was not permitted to return to work until February 8. The following week charging party left work early to see her doctor because of her illness (in the release letter, the psychiatrist had explained that his client would need to meet with him once or twice a month as part of her accommodation). Although she called in sick the next day, defendant fired her for "job abandonment."
Under the 2-year consent decree resolving this case, charging party will receive $60,000 in monetary relief ($5,000 in backpay and $55,000 in nonpecuniary compensatory damages). The decree prohibits defendant from engaging in employment practices that violate the ADA or that are retaliatory. Defendant will send charging party an apology letter and a reference letter, both signed by her former supervisor in her current position of Region Infusion Manager. The first will include the statement "Apria . . . regrets the circumstances under which your employment with the Company ended." The second will state in pertinent part, "Her performance was very good and, as a result, we hired her as a regular full-time employee . . . in the position of Quality Assurance Coordinator. . . [She] performed her assignments well."

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