JOINT MEMORANDUM 

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Mary Jo O’Neill, AZ Bar #005924 

Michael Baskind, AZ Bar #030810 

James Driscoll-MacEachron, AZ Bar #027828 

Equal Employment Opportunity 

Commission, Phoenix District Office 

3300 N. Central Ave., Suite 690 

Telephone: (602) 640-5003 

Fax: (602) 640-5009 

Email: mary.oneill@eeoc.gov 

 michael.baskind@eeoc.gov 

 james.driscollmaceachron@eeoc.gov 

 

Attorneys for Plaintiff 

Mark W. Robertson (N.Y. S.B. # 4508248) 

Kelly Wood (C.A. S.B. # 267518) 

O'Melveny & Myers LLP 

7 Times Square 

New York, New York 10036 

Telephone: (212) 430-6000 

Fax: (213) 430-6407 

Email: mrobertson@omm.com 

 kwood@omm.com 

Attorneys for Defendants 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Equal Employment Opportunity 

Commission, 

Plaintiff, 

v. 

American Airlines, Inc. and Envoy Air 

Inc., 

Defendants. 

Civil Action No.: 2:17-cv-04059-SPL 

JOINT MEMORANDUM 

REGARDING CONSENT DECREE 

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I. INTRODUCTION 

Pursuant to this Court’s November 8, 2017 Order (Docket No. 5), American 

Airlines, Inc. (“American”), Envoy Air Inc. (“Envoy”) (collectively, “Defendants”), and 

the US Equal Employment Opportunity Commission (“EEOC”) submit this joint 

memorandum addressing why the proposed Consent Decree (Docket No. 4-1) (the 

“Decree”) represents a fair, adequate, and reasonable resolution of the claims set forth in 

the Complaint (Docket No. 1). 

 In determining whether a Consent Decree is “fundamentally fair, adequate and 

reasonable,” the Court “must evaluate both the procedural and substantive fairness of the 

consent decree.” United States v. Pac. Gas & Elec., 776 F. Supp. 2d 1007, 1024 (N.D. 

Cal. 2011) (citing United States v. Chevron, 380 F.Supp.2d 1104, 1110–11 

(N.D.Cal.2005). As set forth below, both are readily satisfied here. 

 If the decree was the product of “good faith, arms-length negotiations,” it is 

“presumptively valid.” United States v. State of Oregon, 913 F.2d 576, 581 (9th Cir. 

1990). Here, since December 2015, the EEOC and Defendants have engaged in extensive 

settlement negotiations, with each party zealously advocating its position through 

experienced counsel. After attempting to negotiate a settlement, the Parties voluntarily 

attended formal mediation in Arizona in July 2016. Despite the assistance of a seasoned 

mediator, the Parties were unable to reach an agreement, but continued to negotiate over 

the following 16 months. In November 2017, after an exhaustive negotiation process, the 

Parties were finally able to agree upon a resolution and execute an agreement. Based on 

the case law, these negotiations, which included in-person meetings, formal mediation, 

and nearly two years of arms-length negotiations, conclusively establish the procedural 

fairness of the Decree. 

 With respect to substantive fairness of a consent decree, the court does not 

determine whether “the settlement is one which the court itself might have fashioned, or 

considers ideal.” Pac. Gas & Elec., 776 F. Supp. 2d at 1025 (citing United States v. 

Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir.1990).) Rather, the court need only 

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determine that “the decree represents a reasonable factual and legal determination.” Id. 

Here, the Decree provides for injunctive relief, as well as monetary relief of $9.8 million 

in American Airlines Group Inc. stock (“AAL stock”), which at its current stock price (as 

of the close of business yesterday) is valued at nearly $14 million. After extensive 

negotiations, the Parties agreed on criteria for identifying the potentially aggrieved 

individuals, and Defendants estimate that approximately 1,500 of their current and former 

employees are potential claimants and may be eligible for a settlement distribution in 

connection with the Decree. 

The provisions of the Decree take into account not only the number of potentially 

aggrieved individuals and the EEOC’s allegations, but also the considerable strength of 

Defendants’ potential defenses, and the fact that Defendants had already revised the 

relevant practices and policies before the Parties’ negotiations began. Considering the 

Defendants’ defenses, the litigation process which could take years to complete, and the 

fact that trial could result in no relief at all, the Parties respectfully submit that the Decree 

represents a more than fair and reasonable resolution to the EEOC’s claims, and 

accordingly, request that it be approved by this Court. 

II. THE DECREE IS FAIR, ADEQUATE, AND REASONABLE 

A court reviews a consent decree to determine whether it is “fundamentally fair, 

adequate and reasonable,” and approval is within the discretion of the Court. Oregon, 913 

F.2d 576, 580 (9th Cir.1990). In “reviewing a consent decree, the district court pays 

deference to the expertise of the agency and the policy encouraging settlement.” Equal 

Employment Opportunity Comm’n v. Mach Mining, LLC, No. 11-cv-00879-JPG-RJD, No. 

16-cv-01306-JPG-RJD, 2017 WL 365636, at *1 (S.D. Ill. Jan. 25, 2017) (citing United 

States v. George A. Whiting Paper Co., 644 F.3d 368, 372 (7th Cir. 2011). “As such, a 

presumption in favor of approving the consent decree arises.” Donovan v. Robbins, 752 

F.2d 1170, 1177 (7th Cir. 1985). “Accordingly, this Court ‘must approve a consent 

decree if it is reasonable, consistent with the agency’s goals, and substantively and 

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procedurally fair.’” Mach Mining, 2017 WL 365636, at *1 (citing George A. Whiting 

Paper Co., 644 F.3d at 372.) Such is the case here. 

A. The Decree Is Procedurally Fair. 

 When assessing a consent decree, “[c]ourts typically first examine procedural 

fairness, and make a determination as to whether the negotiation process was ‘fair and full 

of adversarial vigor.’” Chevron U.S.A., Inc., 380 F. Supp. 2d at 1111 (citing United States 

v. Telluride Co., 849 F.Supp. 1400, 1402 (D. Colo. 1994).) If the decree was the product 

of “good faith, arms-length negotiations,” it is “presumptively valid.” Oregon, 913 F.2d 

at 581. 

 In or around 2009, the EEOC began investigating Defendants’ Americans with 

Disabilities Act (“ADA”) policies and procedures in response to charges of discrimination 

(the “Charges”) filed by 13 current and former employees of Defendants (the “Charging 

Parties”). After requesting documents and interviewing Defendants’ employees, the 

EEOC issued 13 determination letters in 2015 in response to the Charges (“Determination 

Letters”), finding that there was “reasonable cause to believe” that certain of Defendants’ 

policies and practices were not compliant with the ADA, including those related to job 

applications, hiring, transfers, promotions, and reasonable accommodations, including 

Defendants’ alleged practice of refusing to allow employees to return to work unless they 

are 100% healed or without medical restrictions, and requiring employees to compete for 

reassignment. 

 The EEOC invited Defendants to conciliation, and, after a face-to-face meeting and 

substantive discussions, the Parties agreed to attend a formal mediation proceeding. In 

advance of the mediation, the Parties submitted comprehensive briefing to the mediator, 

setting forth their respective positions. The EEOC identified the policies and practices of 

Defendants the agency found to be problematic, including Defendants’ alleged practice of 

refusing to return employees to work with medical restrictions, and requiring employees 

seeking reassignment to compete for such positions. In turn, Defendants explained the 

significant complexities and safety-related concerns involved in operating an airline, 

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including the inherent difficulties of identifying reasonable accommodations for physical 

and mental disabilities in a physically-demanding and highly-regulated industry, where 

the vast majority of employees’ terms and conditions of employment are governed by 

collective bargaining agreements. Defendants also explained that many claimants were 

not qualified for their positions and that there were no available reasonable 

accommodations, including suitable positions for reassignment. 

 On July 18, 2016, the EEOC provided Defendants with the first draft of the Decree, 

and on July 19, 2016, the Parties attended a mediation in Phoenix, Arizona with an 

accomplished mediator. Despite the Parties and the mediator’s best efforts, the Parties 

were unable to reach a resolution. Over the following 16 months, the Parties continued to 

negotiate the terms of the Decree, which included numerous exchanges of proposed 

language and lengthy discussions between counsel, as well as additional in-person 

meetings, including a meeting at the EEOC’s office in Washington DC with the Parties 

and their counsel. The Decree was eventually finalized and executed by all Parties in 

early November 2017. 

 These extensive negotiations were done in good faith, at arms-length, and readily 

establish the procedural fairness of the Decree. See Chevron U.S.A., Inc., 380 F. Supp. 2d 

at 1112 (approving consent decree based on months of negotiations leading up to the 

lodging of the Consent Decree with the Court); Mach Mining, LLC, 2017 WL 365636, at 

*1 (approving consent decree and holding that “all parties [were] represented by 

experienced counsel, and there is nothing suggesting this consent decree was reached 

through anything but a procedurally fair negotiation process”); Turtle Island Restoration 

Network v. U.S. Dep’t of Commerce, 834 F. Supp. 2d 1004, 1017 (D. Haw. 2011), aff’d, 

672 F.3d 1160 (9th Cir. 2012) (approving consent decree and holding that “[i]t is readily 

apparent that the proposed consent decree is procedurally fair” when “[a]lthough the terms 

of the proposed consent decree [were] relatively straightforward, the parties nevertheless 

engaged in more than three months of negotiations”). 

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B. The Decree Is Substantively Fair. 

 After analyzing the procedural fairness of a consent decree, “courts examine the 

substantive fairness of the proposal.” Turtle Island, 834 F. Supp. 2d at 1017. “A consent 

decree is substantively fair if it involves ‘corrective justice and accountability.’” Mach 

Mining, LLC, 2017 WL 365636 at *2 . “Procedural fairness is relevant to the inquiry [of 

substantive fairness] because, to the extent that the process was fair and full of adversarial 

vigor, the results come before the court with a much greater assurance of substantive 

fairness.” Id. at *2 (internal citation omitted) (internal quotations omitted). 

 With respect to substantive fairness, the Court does not determine whether “the 

settlement is one which the court itself might have fashioned, or considers ideal.” Pac. 

Gas & Elec., 776 F. Supp. 2d at 1024–25 (citing Cannons, 899 F.2d at 84. “Instead, the 

‘court’s approval is nothing more than an amalgam of delicate balancing, gross 

approximations and rough justice.” Id. (citing Oregon, 913 F.2d at 581 (internal 

quotations omitted). “The court need only be satisfied that the decree represents a 

reasonable factual and legal determination.” Id. (internal quotations omitted). 

 Here, the Decree imposes substantial monetary and non-monetary relief. As to 

monetary relief, the Decree provides for $9,800,000.00 in AAL stock to be provided to the 

settlement administrator for distribution to the Charging Parties and eligible claimants. 

(Docket No. 4-1, ¶ 17.) Because the value of the AAL stock was set at the time of the 

American’s bankruptcy, when the settlement administrator ultimately converts the stock 

to cash, the value of the settlement will be based on the current value of AAL stock. As 

of close of business on Monday, November 13, 2017, the cash value of the settlement 

amount to be distributed to the Charging Parties and potential eligible claimants is 

$13,786,125.00.1

 The final settlement amount at the time of conversion will be 

distributed amongst the 13 Charging Parties and the potential group of 1,500 eligible 

claimants as detailed in Paragraph 22 of the Decree (the actual number of claimants who 

receive a settlement could be higher or lower). (Docket No. 4-1, ¶ 22.) To the extent any 

 

1

 The value could be higher or lower at the time of conversion. 

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portion of the final settlement amount is not distributed to the eligible claimants and 

Charging Parties, any remaining amounts will be donated to one or more charities and/or 

non-profit organizations mutually agreed to by the Parties. (Id., ¶ 22.q.) 

 In addition to the monetary relief, the Decree affords non-monetary relief as well. 

For example, the Decree requires Defendants to (1) post a notice in each station in which 

Defendants operate, and provide the same notice to newly-hired employees for the 

duration of the Decree, informing employees of their rights under the ADA (id. ¶ 28); (2) 

make available computer-based training to employees and provide annual live training to 

Human Resources employees who assist with the accommodation process regarding the 

provisions of the Decree and employee rights under the ADA (id. ¶ 29); (3) appoint an 

ADA Coordinator who shall be responsible for assisting human resource, supervisory, and 

managerial employees with ADA compliance and compliance with the Decree, as well as 

reviewing certain accommodation decisions (id. ¶¶ 31-32); (4) to the extent not already 

accomplished, adopt policies and practices that are compliant with the ADA and provide 

for reasonable accommodations to qualified individuals with disabilities (id. ¶ 34); (5) 

revise their job descriptions to accurately reflect essential and marginal job functions, and 

to state that reasonable accommodations may be made for qualifying individuals with 

disabilities (id. ¶ 35) ; and (6) provide the EEOC with records evidencing employee 

requests for reasonable accommodations, as well as the results of those requests for the 

duration of the Decree (id. ¶ 38). 

 Courts have repeatedly found consent decrees to be substantively fair in similar 

circumstances, and the result should be the same here. See Mach Mining, LLC, 2017 WL 

365636, at *2 (“The Court finds the instant consent decree substantively fair because it 

obtains a significant civil penalty for the alleged noncompliance and requires the 

defendants to comply with EEOC regulations and an injunctive protocol on future hiring. 

The Court has no reason to believe the process was substantively unfair.”); EEOC v. Ins. 

Car Rentals, Inc., No. 98 CV 8261, 2000 WL 1375589, at *1 (N.D. Ill. July 13, 2000)

(finding that “[t]he terms of this Decree are adequate, fair, reasonable, equitable, and just” 

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when defendants were required to provide monetary relief, post a notice in its facilities, 

provide records to the EEOC, and were enjoined from engaging in discriminatory 

practices); E.E.O.C. v. Renhill Grp. Inc., No. 1:08-CV-82-TS, 2009 WL 1605159, at *7 

(N.D. Ind. June 5, 2009) (“taking into account the consideration set forth in the Consent 

Decree, the possible defenses that could be asserted by [defendant], and the risks of 

further litigation, the Consent Decree is lawful, fair, reasonable, and adequate”). 

That the relief obtained by the EEOC is fair, reasonable and adequate is further 

confirmed by the fact that Defendants have strong defenses to the EEOC’s claims.2

 See 

id. By way of example only, Defendants have a heavily unionized workforce in which the 

terms and conditions of employment are determined by an employee’s seniority. And it is 

well-established that “the ADA does not require an employer to take action inconsistent 

with the contractual rights of other workers under a collective bargaining agreement.” 

Foreman v. The Babcock & Wilcox Company, 117 F.3d 800, 810 (5th Cir. 1997) (citing

Benson v. Nw. Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995)); see also US Airways, 

Inc. v. Barnett, 535 U.S. 391, 405-06 (2002); Eckles v. Consol. Rail Corp., 94 F.3d 1041, 

1051 (7th Cir. 1996) (“After examining the text, background, and legislative history of the 

ADA duty of ‘reasonable accommodation,’ we conclude that the ADA does not require 

disabled individuals to be accommodated by sacrificing the collectively bargained, bona 

fide seniority rights of other employees.”), cert. denied, 520 U.S. 1146 (1997); Milton v. 

Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995) (recognizing plaintiffs’ collective 

bargaining agreement prohibited their transfer to any other job because plaintiffs lacked 

requisite seniority). 

Moreover, many of Defendants’ decisions were based on safety-related concerns 

for its employees that are unique to the airline industry. An employer is not required to 

maintain an employee in the workplace (and may terminate the employee) if the employee 

poses a “direct threat to the health or safety of other individuals in the workplace,” 42 

 

2

 The EEOC does not concede the merits of any of Defendants’ asserted defenses, but recognizes 

that the defenses could have been accepted by a jury for some claimants, in which case the 

individuals the EEOC believes to be aggrieved would recover nothing. 

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U.S.C. § 12113(b), and “no accommodation exists that would either eliminate or reduce 

the risk.” App. to 29 C.F.R. § 1630.2(r). Given the unique safety concerns that exist in 

operating an airline, Defendants contend that many of their decisions with which the 

EEOC took issue were entirely appropriate based on safety concerns. 

The other reality is that there were—and are—significant challenges to providing 

reasonable accommodations to employees in the airline industry’s physically-demanding 

positions. The majority of Defendants’ positions require employees to be able to lift and 

maneuver a significant amount of weight on a continual basis and require repetitive 

bending, stooping, and twisting throughout the day. If an employee in those positions 

could not lift and move heavy baggage, cargo, or aircraft components—the essential 

functions of those positions—no accommodation would allow them to do so. This is true 

even if they work alongside employees who can lift the heavier items; “the law does not 

require an employer to transfer from the disabled employee any of the essential functions 

of his job.” Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 709 (5th Cir. 1997). 

“To have another employee perform a position’s essential function, and to a certain extent 

perform the job for the employee, is not a reasonable accommodation.” Majors v. Gen. 

Elec. Co., 714 F.3d 527, 534 (7th Cir. 2013) (citing Cochrum v. Old Ben Coal Co., 102 

F.3d 908, 912 (7th Cir. 1996) (employee’s suggested accommodation of hiring a helper to 

perform essential function of the job—the overhead work required by the position—was 

not a reasonable accommodation)). 

For these reasons, among others, if this matter were to be litigated, Defendants 

believe they could establish that that they fulfilled their obligations under the ADA, thus 

further confirming that the EEOC obtained a more than fair, adequate, and reasonable 

resolution of its claims. 

III. CONCLUSION 

For the foregoing reasons, the Parties submit that the Decree is a fair, adequate, 

and reasonable resolution of this matter and respectfully request that this Court grant its 

approval. 

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Respectfully submitted: Date: November 14, 2017 

__/s/ Mary Jo O’Neil (with permission) 

Mary Jo O’Neill 

Regional Attorney 

Michael Baskind 

Trial Attorney 

EEOC Phoenix District Office 

3300 N. Central Ave., Suite 690 

Phoenix, Arizona 85012 

Telephone: (602) 640-5003 

Attorney for Plaintiff EEOC 

_/s/ Mark W. Robertson______________ 

O’Melveny & Myers LLP 

Mark W. Robertson 

Kelly Wood 

Times Square Tower 

7 Times Square 

New York, New York 10036 

Telephone: (212) 430-6000 

Attorneys for Defendants 

American Airlines, Inc. and Envoy Air Inc. 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on November 14, 2017, I electronically transmitted the 

foregoing document to the Clerk’s Office using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing to the email addresses denoted on the 

Electronic Mail Notice List. 

 /s/ Mark W. Robertson 

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