Case 2:99-cv-00248-SCB Document 14 Filed 07/24/2000 Page 1 of 17

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

UNITED STATES EQUAL

FORT MYERS DIVISION

ClfRK u.s. DISTRICT COUi\T
MJOD~[ DISTRICT at fLORIDA TAMr,',. flORIDA

EMPLOYMENT OPPORTUNITY

COMMISSION,

Civil Action No.

Plaintiff,

99-248-CIV-FTM-24D

v.

LEE COUNTY, FLORIDA,
Defendant.
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CONSENT DECREE

1. This Consent Decree (the "Decree") is entered into by and between Plaintiff, the United States Equal Employment Opportunity Commission ("EEOC" or the "Commission") and Defendant Lee County, Florida ("Defendant" or "Lee County "). The Commission and Lee County

are collectively referred to herein as the "Parties".

2. On or about May 12, 1999, the EEOC initiated this action by filing its Complaint

against Lee County. The EEOC's Complaint alleged that Lee County violated the Age Discrimination in Employment Act ("ADEA"), as amended, by: (a) discharging Raymond Murphy

(EEOC Charge Numbers 150-95-2755 and 150-96-0868), and Howard Carpenter (EEOC Charge

Number 150-96-0869) for engaging in protected activities under the ADEA; and (b) failing to consider Helga Murphy (EEOC Charge Number 150-98-0357), and Jacquelyn M. Carpenter (EEOC

Charge Number 150-98-0956) for employment because of their husbands' filing of charges of age

discrimination with the Commission, thereby violating the ADEA.

3.

In the interest of resolving this matter and as a result of having engaged in

comprehensive settlement negotiations, the Parties have agreed that this action should be finally
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resolved by the entry of this Decree. This Decree is final and binding upon the Parties, their successors and assigns.
4. The Parties agree that this Decree resolves all claims arising out of EEOC Charge Numbers 150-95-2755, 150-96-0868, 150-96-0869,150-98-0357, 150-98-0956, and the Complaint filed in this action. This Consent Decree in no way relates to, or has any impact on, any other charges or court actions that may be pending before the Commission involving Lee County or its agents or independent contractors.
5. This Decree constitutes the complete agreement between the EEOC and Lee County with respect to the matters referred to herein. No representations or inducements to compromise this action have been made, other than those recited or referenced in this Decree. No waiver, modification or amendment ofany provision ofthis Decree shall be effective unless made in writing, approved by the parties to this Decree and approved by the Court or ordered by the Court.
NOW, THEREFORE, the Court having carefully examined the terms and provisions ofthis Decree, and based on the pleadings filed by the parties, it is ORDERED, ADJUDGED AND DECREED THAT:
This Court has jurisdiction of the subject matter of this action and over the parties for the purposes of entering and enforcing this Decree.
GENERAL INJUNCTIVE PROVISIONS 6. Defendant Lee County, its officers and employees, are enjoined from engaging in conduct which violates the ADEA, by adversely affecting the terms and conditions of any individual's employment on the basis of age. 7. Defendant Lee County, its officers and employees, are enjoined from discriminating against any employee on the basis ofthat employee's opposition to any of Defendant's employment
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practices which the employee believes to be a violation ofthe ADEA. TRAINING
8. Defendant Lee County will develop and implement a specific written policy against age discrimination and retaliation based on complaints of age discrimination for its employees, which is consistent with the Age Discrimination in Employment Act (ADEA), 29 U.S.C. section 621 et. seq. (certain pertinent provisions ofwhich are attached as Exhibit A), within 90 days ofthe entry ofthis Order. Defendant agrees that all its employees will be provided with a complete copy ofthis policy within 120 days of the entry of this Decree.
9. In order to further ensure the effective implementation of Defendant Lee County's anti-discrimination policies, Lee County will conduct training for all of its managers, supervisory personnel and employees on its anti-age discrimination and anti-retaliation policies. Such training will be conducted in two-hour sessions to be held twice annually, beginning from the date of the Court's execution of this Decree through to the expiration of the Decree. Lee County agrees to provide the EEOC, at least two weeks notice before it conducts its training session(s), with the date(s) and location ofthe training, copies ofall training materials to be used at the training sessions, the name of the individual(s) who will be providing the training and a list ofthe names and titles of each employee who will be in attendance at the training. Additionally, Lee County agrees that the EEOC shall, at the EEOC's discretion, be in attendance at the training session.
POSTING 10. Defendant Lee County will post within seven (7) days from the Court's execution of this Decree an 11" x 17" size copy ofthe Notice attached hereto as Exhibit B. Said Notice shall be posted at all its facilities for the duration ofthis Decree in conspicuous locations accessible to all employees. Specifically, the Notice will be posted on an employee bulletin board in each office or
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work place facility of each department or division within Lee County. MONITORING
11. Defendant Lee County will retain all employment records relating in any way to any complaint, allegation and investigation of age discrimination or retaliation based on age discrimination at each work place facility of each department and division within Lee County for the duration ofthis Decree and as required by federal law.
12. Defendant Lee County will provide a copy of this Decree to any employee who requests same.
13. Defendant Lee County will certify to the EEOC every six (6) months throughout the duration of this Decree that it is in compliance with all aspects of this Decree. The first such certification will be due no later than six months after the entry ofthis Consent Decree. With each such certification, the Defendant will provide the EEOC with the name, address and phone number of any person who alleges they have been subjected to age discrimination or retaliation while working at any of the Defendant's facilities during the preceding six (6) months. Defendant will also state its actions taken in response to each such allegation. Defendant will provide, upon request by the Commission, any and all documentation associated with each such complaint.
MONETARY RELIEF 14. Defendant Lee County shall provide the following relief to Raymond Murphy: (a) Defendant shall pay charging party Raymond Murphy a lump sum in the amount of $97,003.06 (Ninety-seven thousand three dollars and 06/100 cents), which represents back pay, less amounts required to be withheld for social security withholdings, federal, state and local income taxes, within fifteen (15) calendar days from the Court's execution ofthis Decree. Lee County will also issue an I.R.S. form W-2 and shall be responsible for the payment of the employer's share of
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any federal, state or local taxes, and social security withholdings. The payment by Lee County shall be made by certified check made payable to "Raymond Murphy," and forwarded to Raymond Murphy at his home address, by certified mail with a return receipt requested.
(b) In consideration of the legal representation afforded to Raymond Murphy, the Defendant shall pay $41,572.74 (Forty-one thousand five-hundred seventy-two dollars and 74/100 cents) in attorney's fees made payable to "Mr. Dennis Webb, Esq.", and shall provide Mr. Webb with an I.R.S. form 1099. The payment shall be forwarded to Mr. Dennis Webb, Esq., Law firm of Webb and Scarmozzino, 1617 Hendry Street, Third Floor, Fort Myers, Florida 33901, within fifteen (15) calendar days from the Court's execution ofthis Decree. A copy of the payments referenced above in ~ 14(a) and (b) shall be mailed by certified mail with a return receipt requested to the attention of Pauline Terrelonge, Senior Trial Attorney, U.S. Equal Employment Opportunity Commission, 501 E. Polk Street, Room 1020, Tampa, Florida, 33602.
(c) Defendant Lee County has reviewed Raymond Murphy's employment history with Lee County and determined that he has accumulated ten (10) plus years of credited service with the Florida Retirement System ("FRS"). Defendant Lee County has also consulted and confirmed with the FRS that Raymond Murphy has ten plus years ofcredited pension service and is therefore, vested and presently eligible to apply for and receive his accumulated pension benefits.
15. Defendant Lee County shall provide the following relief to Howard Carpenter: (a) Defendant shall pay charging party Howard Carpenter a lump sum in the amount of $72,805.70 (Seventy-two thousand eight-hundred five dollars and 70/100 cents), which represents back pay, less amounts required to be withheld for social security withholdings, federal, state and local income taxes, within fifteen (15) calendar days from the Court's execution ofthis Decree. Lee County will also issue an I.R.S. form W-2 and shall be responsible for the payment ofthe employer's
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share of any federal, state or local taxes, and social security withholdings. The payment by Lee County shall be made by certified check made payable to "Howard Carpenter," and forwarded to Howard Carpenter at his home address, by certified mail with a return receipt requested.
(b) In consideration of the legal representation afforded to Howard Carpenter, the Defendant shall pay $31,202.44 (Thirty-one thousand two-hundred two dollars and 44/100 cents) in attorney's fees made payable to "Mr. Dennis Webb, Esq.", and shall provide Mr. Webb with an I.R.S. form 1099. The payment shall be forwarded to Mr. Dennis Webb, Esq., Law firm of Webb and Scarmozzino, 1617 Hendry Street, Third Floor, Fort Myers, Florida 33901, within fifteen (15) calendar days from the Court's execution of this Decree. A copy ofthe payments referenced above in ~ 15 (a) and (b) shall be mailed by certified mail with a return receipt requested to the attention of Pauline Terrelonge, Senior Trial Attorney, U.S. Equal Employment Opportunity Commission, 501 E. Polk Street, Room 1020, Tampa, Florida, 33602.
(c) In order for Howard Carpenter to vest and be eligible to receive pension and related benefits under the FRS, Defendant Lee County shall pay whatever contributions may be necessary and shall reinstate Howard Carpenter to a regularly established position (most likely Toll Collector), for a period of no less than sixty (60) consecutive days commencing on or about June 1,2001, and continuing through on or about August 1,2001, or whatever minimum alternative period is necessary for Mr. Carpenter to vest and be eligible for benefits under the FRS, pursuant to recently enacted legislation, Florida Statutes, § 121, as amended. Throughout Mr. Carpenter's reinstatement period, he shall be in administrative leave status without pay. Upon reaching the established date for Mr. Carpenter to be vested and eligible to receive pension and related benefits under the FRS, Mr. Carpenter's employment with Lee County shall be terminated. Defendant Lee County, in consultation with the FRS, have determined that as of on or about Mr. Carpenter's
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tennination date, Mr. Carpenter will have accumulated eight (8) plus years of credited service with the Florida Retirement System ("FRS") and therefore, vested and eligible to apply for and receive his accumulated pension benefits at that time.
16. Defendant Lee County shall provide the following relief to Helga Murphy: (a) Defendant Lee County shall pay charging party Helga Murphy a lump sum in the amount of $37,595.62 (Thirty-seven thousand five-hundred ninety-five dollars and 62/100 cents), which represents back pay and front pay, less amounts required to be withheld for social security withholdings, federal, state and local income taxes, within fifteen (15) calendar days from the Court's execution of this Decree. Lee County will also issue an I.R.S. fonn W-2 and shall be responsible for the payment of the employer's share of any federal, state or local taxes, and social security withholdings. The payment by Lee County shall be made by certified check made payable to "Helga Murphy," and forwarded to Helga Murphy at her home address, by certified mail with a return receipt requested. (b) In consideration of the legal representation afforded to Helga Murphy, the Defendant shall pay $16,112.41 (Sixteen thousand one hundred twelve dollars and 411100 cents) in attorney's fees made payable to "Mr. Dennis Webb, Esq.", and shall provide Mr. Webb with an I.R.S. fonn 1099. The payment shall be forwarded to Mr. Dennis Webb, Esq., Law finn of Webb and Scarmozzino, 1617 Hendry Street, Third Floor, Fort Myers, Florida 33901, within fifteen (15) calendar days from the Court's execution ofthis Decree. A copy ofthe payments referenced above in ~ 16(a) and (b) shall be mailed by certified mail with a return receipt requested to the attention of Pauline Terrelonge, Senior Trial Attorney, U.S. Equal Employment Opportunity Commission, 501 E. Polk Street, Room 1020, Tampa, Florida, 33602. 17. Defendant Lee County shall provide the following relief to Jacquelyn Carpenter:
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(a) Defendant Lee County shall pay charging party Jacquelyn Carpenter a lump sum in the amount of$37,595.62 (Thirty-seven thousand five-hundred ninety-five dollars and 621100 cents), which represents back pay and front pay, less amounts required to be withheld for social security withholdings, federal, state and local income taxes, within fifteen (15) calendar days from the Court's execution of this Decree. Lee County will also issue an I.R.S. form W-2 and shall be responsible for the payment of the employer's share of any federal, state or local taxes, and social security withholdings. The payment by Lee County shall be made by certified check made payable to "Jacquelyn Carpenter," and forwarded to Jacquelyn Carpenter at her home address, by certified mail with a return receipt requested.
(b) In consideration of the legal representation afforded to Jacquelyn Carpenter, the Defendant shall pay $16,112.41 (Sixteen thousand one hundred twelve dollars and 411100 cents) in attorney's fees made payable to "Mr. Dennis Webb, Esq.", and shall provide Mr. Webb with an I.R.S. form 1099. The payment shall be forwarded to Mr. Dennis Webb, Esq., Law firm of Webb and Scarmozzino, 1617 Hendry Street, Third Floor, Fort Myers, Florida 33901, within fifteen (15) calendar days from the Court's execution ofthis Decree. A copy ofthe payments referenced above in' 17(a) and (b) shall be mailed by certified mail with a return receipt requested to the attention of Pauline Terrelonge, Senior Trial Attorney, U.S. Equal Employment Opportunity Commission, 501 E. Polk Street, Room 1020, Tampa, Florida, 33602.
NOTICE OF NON-COMPLIANCE 18. If the Defendant Lee County fails to tender the above-mentioned payments as set forth in,s 14 through 17, then the Defendant 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 noncompliance or delay of the Defendant. In the event that
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EEOC believes that Lee County bas failed to comply with any of the provision(s) of this Decree,

the EEOC may apply to the Court for appropriate relief.

ENFORCEMENT OF THE DECREE

19. The Commission shall have independent authority to seek the judicial enforcement

of any aspect or term or provisioo ofthis Decree..

20. The Court will take whatever measures it deems appropriate to effectuate the

enforcanent ofthe terms oftbis Decree.

COSTS

21. Each Party sball bear its own cosIs and attorney's fees associated with this litigation.

DURATION OF DECREE

22. This Decree shall remain in effect for three (3) years from the date of the Court's

execution of the Decree. During that time, this Court shall retainjurisdiction over this matter and

the Parties for purposes of enforcing compliance with the Decree, including such orders as may be

required to effectuate its purposes.

AGREED TO:

FOR THE PLAINTIFF:

UNITED STATES EQUAL EMPLOYMENT OPPORrpNITY COMMISSION

~~kitirL. ~ by:

Dale:

ID .2000

\

er Franklm-Thomas, Esqwre

Regional Attorney

Miami District Office

United States Equal Employment Opportunity Commission

One Biscayne Tower, Suite 2700

2 South Biscayne Boulevard

Miami, Florida 33131-1805

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AGREED TO:
::R~~.FLO:A
J'V~ 11)000
"JOHN E. ALBION CHAIRMAN, BOARD OF COUNTY COMMISSIONERS

_

SO ORDERED, ADJUDGED AND DECREED, this __0<".-\--'4-_~ _ day of

~~ ,2000.

23 '""- c.. B"cA.c..J
The Honorable Susan C. Bucklew United States District Judge Middle District of Florida

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Exhibit A
29 U.S.C. § 621 et seq. UNITED STATES CODE, TITLE 29. LABOR CHAPTER 14--AGE DISCRIMINATION IN EMPLOYMENT
§ 621. CONGRESSIONAL STATEMENT OF FINDINGS AND PURPOSE (a) The Congress hereby finds and declares that-(1) in the face of rising productivity and affluence. older workers find themselves disadvantaged in their efforts to retain employment. and especially to regain employment when displaced from jobs; (2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice. and certain otherwise desirable practices may work to the disadvantage of older persons; (3) the incidence of unemployment. especially long-term unemployment with resultant deterioration of skill. morale. and employer acceptability is. relative to the younger ages. high among older workers; their numbers are great and growing; and their employment problems grave; (4) the existence in industries affecting commerce. of arbitrary discrimination in employment because of age. burdens commerce and the free flow of goods in commerce. (b) It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.
§ 623. PROHIBITION OF AGE DISCRIMINATION (a) Employer practices It shall be unlawful for an employer-(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation. terms. conditions. or privileges of employment. because of such individual's age; (2) to limit, segregate. or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee. because of such individual's age; or (3) to reduce the wage rate of any employee in order to comply with this chapter.
§ 626. RECORDKEEPING, INVESTIGATION, AND ENFORCEMENT (a) Attendance of witnesses; investigations, inspections. records. and homework regulations The Equal Employment Opportunity Commission shall have the power to make investigations and require the keeping of records necessary or appropriate for the administration of this chapter in accordance with the powers and procedures provided in sections 209 and 211 of this title.
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(b) Enforcement; prohibition of age discrimination under fair labor standards; unpaid minimum wages and unpaid overtime compensation; liquidated damages; judicial relief; conciliation, conference, and persuasion The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211 (b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section. Before instituting any action under this section, the Equal Employment Opportunity Commission shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion. (c) Civil actions; persons aggrieved; jurisdiction; judicial relief; termination of individual action upon commencement of action by Commission; jury trial (1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee under this chapter. (2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action. (d) Filing of charge with Commission; timeliness; conciliation, conference, and persuasion No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed-(1) within 180 days after the alleged unlawful practice occurred; or (2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion. (e) Reliance on administrative rulings; notice of dismissal or termination; civil action after receipt of notice Section 259 of this title shall apply to actions under this chapter. If a charge filed with the Commission under this chapter is dismissed or the proceedings of the Commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought under this section by a person defined in section 630(a) of this title against the
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respondent named in the charge within 90 days after the date of the receipt of such notice. (f) Waiver (1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum-(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate; (B) the waiver specifically refers to rights or claims arising under this chapter; (C) the individual does not waive rights or claims that may arise after the date the waiver is executed; (D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled; (E) the individual is advised in writing to consult with an attorney prior to executing the agreement; (F)(i) the individual is given a period of at least 21 days within which to consider the agreement; or (ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement; (G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired; (H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement ofthe period specified in subparagraph (F» informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to-(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and (ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program. (2) A waiver in settlement of a charge filed with the Equal Employment Opportunity Commission, or an action filed in court by the individual or the individual's representative, alleging age discrimination of a kind prohibited under section 623 or 633a of this title may not be considered knowing and voluntary unless at a minimum-(A) subparagraphs (A) through (E) of paragraph (1) have been met; and (B) the individual is given a reasonable period oftime within which to consider the settlement agreement. (3) In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in subparagraph (A), (B), (C), (0), (E), (F), (G), or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been met, the party asserting the validity ofa waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2). (4) No waiver agreement may affect the Commission's rights and responsibilities to enforce this
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chapter. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission. § 627. NOTICES TO BE POSTED Every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice to be prepared or approved by the Equal Employment Opportunity Commission setting forth information as the Commission deems appropriate to effectuate the purposes of this chapter.
§ 630. DEFINITIONS For the purposes of this chapter(a) The term "person" means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons. (b) The term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States. (c) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer and includes an agent of such a person; but shall not include an agency of the United States. (d) The term "labor organization" means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization. (e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is fifty or more prior to July 1, 1968, or twenty-five or more on or after July 1, 1968, and such labor organization-(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended [29 U.S.c.A. § 151 et seq.], or the Railway Labor Act, as amended [45 U.S.C.A. § 151 et seq.]; or (2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or (3) has chartered a local labor organization or subsidiary body which is representing or actively
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seeking to represent employees ofemployers within the meaning of paragraph (1) or (2); or (4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or (5) is a conference, general committee,joint or system board, or joint council subordinate to a national or intemationallabor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection. (f) The term "employee" means an individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers ofthe office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision. The term "employee" includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country. (g) The term "commerce" means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof. (h) The term "industry affecting commerce" means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry "affecting commerce" within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C.A. § 401 et seq.]. (i) The term "State" includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelflands defined in the Outer Continental Shelf Lands Act [43 U.S.C.A. § 1331 et seq.]. (j) The term "firefighter" means an employee, the duties of whose position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, including an employee engaged in this activity who is transferred to a supervisory or administrative position. (k) The term "law enforcement officer" means an employee, the duties ofwhose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of a State, including an employee engaged in this activity who is transferred to a supervisory or administrative position. For the purpose of this subsection, "detention" includes the duties of employees assigned to guard individuals incarcerated in any penal institution. (1) The term "compensation, terms, conditions, or privileges of employment" encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.
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§ 631. AGE LIMITS (a) Individuals at least 40 years of age The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age. (b) Employees or applicants for employment in Federal Government In the case of any personnel action affecting employees or applicants for employment which is subject to the provisions of section 633a of this title, the prohibitions established in section 633a of this title shall be limited to individuals who are at least 40 years of age. (c) Bona fide executives or high policymakers (1) Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2- year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000. (2) In applying the retirement benefit test ofparagraph (1) of this subsection, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit shall be adjusted in accordance with regulations prescribed by the Equal Employment Opportunity Commission, after consultation with the Secretary of the Treasury, so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made.
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EXHIBITB
NOTICE TO ALL LEE COUNTY, FLORIDA, EMPLOYEES POSTED PURSUANT TO A COURT ORDERED CONSENT DECREE This notice is being posted pursuant to a Consent Decree by the Court in United States Equal Employment Opportunity Commission v. Lee County Inc., Civil Action No- 99-248-CivFTM-Bucklew. Lee County will not discriminate against employees in violation of the Age Discrimination in Employment Act ("ADEA"). The ADEA protects individuals from employment discrimination because of their age. The ADEA also protects individuals from retaliation for having complained of an unlawful employment practice based on age. Lee County will not condone discrimination of any kind as set forth in federal laws, including, but not limited to age discrimination and retaliation. Furthermore, Lee County assures its employees that it supports the ADEA and will not take any action against an individual because he/she has exercised hislher 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 anti-employment discri~ination laws. 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 the ADEA or any other federal antidiscrimination law may telephone the Miami District Office of the Equal Employment Opportunity Commission at 1-800-669-4000 or (305) 530-6000, or the Tampa Area Office at 813-228-2310.
Lc:~
./.fOHN E. AhBION
CHAIRMAN, Board of County Commissioners

 
 Case 2:99-cv-00248-SCB Document 1 Filed 05/12/1999 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

LEE COUNTY,

)

)

Defendant.

)

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

i'V

"

CIVIL ACTION NO~-~4~.:.(w ~Plr':~JY.l

SUSAN C. BUCKLEW ~:

COMPLAINT

,.,

U I

TIJRY TRIAL DEMAND

INJUNCTIVE RELIEF SOUGHT

NATURE OF THE ACTION

This is an action under the Age Discrimination in Employment Act to correct unlawful

employment practices on the basis of age and to provide appropriate relief to Raymond Murphy,

Howard Carpenter, Jacquelyn Carpenter and Helga Murphy. As alleged with greater particularity

in paragraphs seven through fifteen below, the Equal Employment Opportunity Commission

("EEOC" or "COMMISSION") alleges that Raymond Murphy and Howard Carpenter were

discharged from employment with the Defendant because of their age and/or in retaliation for

objecting to actions taken by the Defendant which Raymond Murphy and Howard Carpenter

believed violated federal anti-discrimination laws. The EEOC further alleges that Jacquelyn

Carpenter and Helga Murphy were denied employment and/or the opportunity to compete and

interview for employment in retaliation for the actions of Mr. Murphy and Mr. Carpenter.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.c. §§ 451, 1331, 1337, 1343

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and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 US.c. § 626(b) (the "ADEA"), which incorporates by reference Sections 16(b) and 16(c) of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. § § 216(b) and 216(c).
2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the Fort Myers Division ofthe United States District Court for the Middle District of Florida.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 US.C. § 626(b), as amended by Section 2 of Reorganization Plan No.1 of 1978,92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant times, Defendant, Lee County (the "County"), has continuously been a Political Subdivision of the State of Florida. 5. At all relevant times, Defendant County has continuously been an employer within the meaning of Section II(b) of the ADEA, 29 US.C. § 630(b).
CONCILIATION 6. Prior to the institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practices alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) ofthe ADEA, 29 US.C. § 626(b).
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STATEMENT OF CLAIMS

7.

Since at least April 28, 1995, the Defendant County has engaged in unlawful

employment practices at its Department ofTransportation affecting Raymond Murphy, in violation

of Section 4(a)(1) of the ADEA, 29 U.S.C. § 623(a)(I). The unlawful employment practices

included discharging Raymond Murphy from employment (either via termination or constructive

discharge) or otherwise discriminated against him with respect to the terms, conditions, and/or

privileges ofemployment because of his age, then 60. The EEOC alleges that Mr. Murphy was over

40 years of age, qualified for the position he then held, that he was either terminated or

constructively discharged from employment and that if terminated he was replaced by a younger

individual and if constructively discharged that a reasonable person in his age group would have felt

compelled to resign.

8.

Since at least April 28, 1995, the Defendant County has engaged in unlawful

employment practices affecting Raymond Murphy, in violation of Section 4(d) of the ADEA, 29

U.S.C. § 623(d). The unlawful employment practices included allegations that the Defendant

County discriminated against Raymond Murphy because he opposed an employment practice ofthe

Defendant County that he in good faith believed was in violation of federal laws governing age

discrimination in the workplace, such as, Section 4 of the ADEA, 29 U.S.C. § 623. The EEOC

alleges that Lee County knew Raymond Murphy had participated in an activity protected by the

ADEA (participation in an investigation of alleged age discrimination) when it took an adverse

employment action against him and that the protected activity Mr. Murphy participated in and

the adverse employment action he was subjected to were not wholly unrelated.

9.

Since at least April 28, 1995, the Defendant County has engaged in unlawful

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Case 2:99-cv-00248-SCB Document 1 Filed 05/12/1999 Page 4 of 8
employment practices affecting Howard Carpenter, in violation of Section 4(a)(1) of the ADEA, 29 U.S.C. §§ 623(a)(1). The unlawful employment practices included discharging Howard Carpenter from employment (either via termination or constructive discharge) or otherwise discriminated against him with respect to the tenns, conditions, and/or privileges of employment because of his age, then 61. The EEOC alleges that Mr. Carpenter was over 40 years of age, qualified for the position he then held, that he was either tenninated or constructively discharged from employment and that iftenninated he was replaced by a younger individual and if constructively discharged that a reasonable person in his age group would have felt compelled to resign.
10. Since at least April 28, 1995, the Defendant County has engaged in unlawful employment practices affecting Howard Carpenter, in violation of Section 4(d) of the ADEA, 29 U.S.C. §§ 623(a)(1) and 623(d). The EEOC alleges that Lee County knew Howard Carpenter had participated in an activity protected by the ADEA (filing an internal grievance alleging age discrimination) when it took an adverse employment action against him and that the protected activity Mr. Carpenter participated in and adverse employment action he was subjected to were not wholly unrelated.
11. Since at least March 18, 1997, the Defendant County has engaged in unlawful employment practices affecting Jacquelyn Carpenter, in violation of Section 4(d) of the ADEA, 29 U.S.C. § 623(d). The unlawful employment practices included allegations that the Defendant County discriminated against Jacquelyn Carpenter because of her association with Howard Carpenter, her husband, who has opposed an employment practice of the Defendant County that he in good faith believed was in violation of federal laws governing age discrimination in the workplace, such as, Section 4 ofthe ADEA, 29 U.S.C. § 623. The EEOC alleges that Lee County
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Case 2:99-cv-00248-SCB Document 1 Filed 05/12/1999 Page 5 of 8
knew Howard Carpenter had participated in an activity protected by the ADEA (filing an internal grievance alleging age discrimination) when it took an adverse employment action against his wife, Jacquelyn Carpenter, and that the protected activity Howard Carpenter participated in and adverse employment action Jacquelyn Carpenter was subjected to (denial of the opportunity to compete and interview for employment and the failure to hire) were not wholly unrelated.
12. Since at least May 28, 1997, the Defendant County has engaged in unlawful employment practices affecting Helga Murphy, in violation of Section 4(d) ofthe ADEA, 29 U.S.c. § 623(d). The unlawful employment practices included allegations that the Defendant County discriminated against Helga Murphy because of her association with Raymond Murphy, her husband, who has opposed an employment practice of the Defendant County that he in good faith believed was in violation of federal laws governing age discrimination in the workplace, such as, Section 4 of the ADEA, 29 U.S.C. § 623. The EEOC alleges that Lee County knew Raymond Murphy had participated in an activity protected by the ADEA (participation in an investigation of alleged age discrimination) when it took an adverse employment action against his wi fe, Helga Murphy, and that the protected activity Raymond Murphy participated in and adverse employment action Helga Murphy was subjected to (denial of the opportunity to compete and interview for employment and the failure to hire) were not wholly unrelated.
13. The effect of the practices complained of in the above paragraphs numbered seven through ten above has been to deprive Raymond Murphy and Howard Carpenter of equal employment opportunities and has otherwise adversely affected their status as employees because of their age and/or because they in good faith opposed an employment practice they believed was in violation of the Age Discrimination in Employment Act.

Case 2:99-cv-00248-SCB Document 1 Filed 05/12/1999 Page 6 of 8
14. The effect of the practices complained of in above paragraphs numbered eleven and twelve has been to deprive Jacquelyn Carpenter and Helga Murphy of equal employment opportunities and has otherwise adversely affected their status as applicants for employment because of their association with individuals who in good faith opposed an employment practice they believed was in violation of the Age Discrimination in Employment Act.
15. The unlawful employment practices complained of in paragraphs seven through twelve above were and are willful within the meaning of Section 7(b) of the ADEA, 29 U.S.c. § 626(b).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant County, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in the failure to interview and/or hire, or to discharge (terminate or constructively discharge) any employee because of age, and/or because an individual has opposed an unlawful employment practice, and/or because an individual has associated with an employee who has opposed an unlawful employment practice and from engaging in any other employment practice which discriminates on the basis of age against individuals 40 years of age and older. B. Order Defendant County to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices. C. Grant a judgment requiring Defendant County to pay appropriate back wages in an amount to be determined at trial, and an equal sum as liquidated damages and prejUdgment interest
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Case 2:99-cv-00248-SCB Document 1 Filed 05/12/1999 Page 7 of 8
to those individuals whose wages are being unlawfully withheld as a result of the acts complained of above, including but not limited to, Raymond Murphy, Howard Carpenter, Jacquelyn Carpenter and Helga Murphy.
D. Grant ajudgment requiring Defendant County to pay punitive damages in an amount to be determined at trial to those individuals who were retaliated against because they in good faith opposed an unlawful employment practice or who were retaliated against because oftheir association with an employee who opposed an unlawful employment practice, including but not limited to, Raymond Murphy, Howard Carpenter, Jacquelyn Carpenter and Helga Murphy.
E. Order Defendant County to make whole all individuals adversely affected by the unlawful practices described above, by providing the affinnative relief necessary to eradicate the effects of its unlawful practices, including but not limited to, training of employees, notice postings, the reinstatement of Raymond Murphy and Howard Carpenter and the rightful-place interviewing and/or hiring of Jacquelyn Carpenter and Helga Murphy.
F. 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.
C. GREGORY STEWART General Counsel GWENDOLN Y. REAMS Associate General Counsel
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02AoD'~·~
DELNER FRANKLIN-THOMAS Regional Attorney

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VEG. LOWE

Supervisory Trial Attorney

KELWi~RSON

Trial Attorney Florida Bar Number 980500 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Two South Biscayne Boulevard Suite 2700 Miami, Florida 33131 (305) 530-6006 (305) 530-6000 (305) 536-4494 Facsimile

8

 
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U.S. District Court Middle District of Florida (Ft. Myers) CIVIL DOCKET FOR CASE #: 2:99-cv-00248-SCB

CLOSED, DNF

EEOC v. Lee County Assigned to: Judge Susan C Bucklew Demand: $0 Cause: 28:451 Employment Discrimination Plaintiff Equal Employment Opportunity Commission
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Date Filed: 05/12/1999 Date Terminated: 07/24/2000 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by C. Gregory Stewart Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131 305/530-6010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Delner Franklin-Thomas Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131 305/530-6001 Email: delner.franklin-thomas@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eve G. Lowe Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131 305/530-6010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gwendolyn Y. Reams Equal Employment Opportunity
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V. Defendant Lee County

Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131 305/530-6010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly James Henderson Kelly Henderson, PA Suite 504 4440 PGA Blvd Palm Beach Gardens, FL 33410 561/775-0420 Fax: 561/775-0720 Email: kelly@flprobate.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pauline Terrelonge Equal Employment Opportunity Commission Tampa Area Office 501 E. Polk St., Suite 1000 Tampa, FL 33602 813/228-2310 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jack Neil Peterson Lee County Attorney's Office 2115 Second Street P.O. Box 398 Ft. Myers, FL 33902 239/335-2236 Fax: 239/335-2118 Email: peterj@leegov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/12/1999

#

Docket Text

1 COMPLAINT filed; Jury Demand (sll) (Entered: 05/12/1999)

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05/12/1999 05/19/1999 05/24/1999 05/24/1999 06/01/1999 06/03/1999 06/22/1999 07/07/1999 07/21/1999 10/18/1999
10/18/1999 01/10/2000 03/31/2000
03/31/2000
04/07/2000
07/24/2000 07/24/2000

MAGISTRATE JUDGE CASE ASSIGNMENT Magistrate assigned: George T. Swartz (sll) (Entered: 05/12/1999)
SUMMONS(ES) issued for Lee County . Consent(s) issued. (aa) (Entered: 05/19/1999)
2 COURT'S NOTICE of certain deadlines (aa) (Entered: 05/24/1999)
3 NOTICE of designation under Local Rule 3.05 - TRACK 2. (ctc) (aa) (Entered: 05/24/1999)
4 NOTICE of attorney appearance for EEOC by Pauline Terrelonge (aa) (Entered: 06/02/1999)
5 NOTICE of substitution of attorney Kelly Henderson for Pauline Terrelonge by EEOC (aa) (Entered: 06/04/1999)
6 WAIVER OF SERVICE Returned Executed as to Lee County 5/14/99 Answer due on 7/13/99 for Lee County (aa) (Entered: 06/24/1999)
7 ANSWER and affirmative defenses to Complaint by Lee County (sll) (Entered: 07/07/1999)
8 CASE MANAGEMENT REPORT. (aa) (Entered: 07/23/1999)
9 CASE MANAGEMENT AND SCHEDULING ORDER setting Jury trial set for the term commencing 9/5/00 Deadline for filing of motions 4/28/00; Discovery cutoff 3/31/00; Scheduled for Judge Susan C. Bucklew (signed by Judge Susan C. Bucklew) ctc (aa) (Entered: 10/19/1999)
9 CASE MANAGEMENT AND SCHEDULING ORDER setting Pretrial conference for 9:00 8/3/00; Pretrial statement due on or before 7/31/00 (signed by Judge Susan C. Bucklew) ctc (aa) (Entered: 10/19/1999)
MAGISTRATE JUDGE CASE ASSIGNMENT Magistrate assigned: Douglas N. Frazier (aa) (Entered: 01/10/2000)
10 NOTICE of stipulation regarding parties' expert identification and disclosure of experts reports, and dates ordered in case management order for dispositive motions, pretrial conference, trial and related matters and request for issuance of amended court order by EEOC, Lee County (aa) (Entered: 04/03/2000)
11 STIPULATION regarding parties' expert identification and disclosure of experts reports and dates ordered in case management order for dispositive motions, pretrial conference, trial and related matters and for issuance of amended scheduling order by plaintiff EEOC, defendant Lee County . (aa) (Entered: 04/03/2000)
12 AMENDED CASE MANAGEMENT AND SCHEDULING ORDER setting Discovery cutoff 7/14/00; dispositive motion filing deadline for 8/15/00 Jury trial set for the term commencing 11/6/00; Scheduled for Judge Susan C. Bucklew (signed by Judge Susan C. Bucklew) ctc (aa) (Entered: 04/07/2000)
13 NOTICE of consent decree by EEOC (jnb) (Entered: 07/24/2000)
14 CONSENT DECREE by EEOC, Lee County (jnb) (Entered: 07/24/2000)

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07/24/2000 07/24/2000

ENDORSED ORDER granting [14-1] decree consent ( Signed by Judge Susan C. Bucklew ) ctc (jnb) (Entered: 07/24/2000)
CASE CLOSED. (jnb) (Entered: 07/24/2000)

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