IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 11-cv-02557-CMA-CBS 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 

Plaintiff, 

v. 

BEVERAGE DISTRIBUTORS COMPANY, LLC, 

Defendant.

CONSENT DECREE 

I. RECITALS 

 

1. This matter was instituted by Plaintiff Equal Employment Opportunity 

Commission (“Plaintiff,” “EEOC,” or “the Commission”), an agency of the United States 

government, alleging that after eliminating Mike Sungaila’s position as a Driver Helper, 

Defendant Beverage Distributors Company, LLC (“Defendant” or “BDC”) offered Mr. 

Sungaila a position as a Night Warehouse Loader, conditioned on the results of a 

medical examination, and that after obtaining the results of the medical examination, 

Defendant withdrew the offer because of Mr. Sungaila’s disability and terminated his 

employment. 

2. The Parties signatory hereto are the EEOC and the Defendant.

3. The Parties, desiring to settle this action by an appropriate Consent Decree 

(“Decree”), agree to the jurisdiction of this Court over the Parties and the subject matter 

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of this action, and agree to the power of this Court to enter a Consent Decree 

enforceable against Defendant. 

4. As to the issues resolved, this Decree is final and binding upon the Parties and 

their successors and assigns. 

5. For the purpose of amicably resolving disputed claims, the Parties jointly request 

this Court to adjudge as follows: 

IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS: 

II. JURISDICTION 

6. The Parties stipulate to the jurisdiction of the Court over the Parties and subject 

matter of this action, and have waived the entry of findings of fact and conclusions of 

law. 

7. The duration of this Decree shall be two (2) years from the date of signing by the 

Court. 

III. ISSUES RESOLVED

8. This Decree resolves the claims alleged in the above-captioned lawsuit, and 

constitutes a complete resolution of all of the Commission’s claims of unlawful 

employment practices under the Americans with Disabilities Act (ADA) that arise from 

Charge of Discrimination Number 541-2008-01960 filed by Mike Sungaila, which claims 

Defendant has denied.

9. Defendant and its officers, agents, employees, successors, and all other persons 

in active concert or participation with any of them will not interfere with the relief herein 

ordered, but shall cooperate in the implementation of this Decree.

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IV. MONETARY RELIEF 

10. Judgment is hereby entered in favor of the Commission and against Defendant in 

the amount of $160,000.

11. Defendant will not condition the receipt of individual relief upon Mr. Sungaila’s 

agreement to: (a) maintain as confidential the terms of this Decree or the facts of the 

case; (b) waive his statutory right to file a charge with any federal or state antidiscrimination agency; or (c) promise not to reapply for a position with the Defendant.

12. To resolve these claims, Defendant shall pay a total of $160,000, payable to Mr. 

Sungaila, allocated as follows:

12.1 Total Back Pay, Including Pre-Judgment Interest and Tax Penalty Offset: 

$80,000 

12.2 Compensatory Damages: $80,000

13. The payments required under this Decree shall be mailed to the payee(s) within 

ten (10) calendar days after the Court’s entry of the Decree, and mailed to the address 

provided by the EEOC. 

14. Within three (3) business days after payments are mailed to Mr. Sungaila, 

Defendant shall submit to the EEOC copies of the checks issued. 

V. OTHER INDIVIDUAL RELIEF 

15. Within seven (7) calendar days of the entry of the Decree, Defendant will provide 

Mr. Sungaila with a letter of recommendation on company letterhead in the form 

attached as Exhibit 1. 

16. Unless otherwise required to be maintained by Defendant under applicable law, 

Defendant shall expunge from its records (a) any and all references to the allegations of 

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discrimination filed against Defendant that formed the basis of this action; and (b) any 

and all references to Mr. Sungaila’s participation in this action. 

VI. EQUITABLE RELIEF 

Scope 

17. The terms of this Decree shall apply to all of Defendant’s facilities in Colorado. 

Injunctive Relief 

18. Defendant, its officers, agents, successors, and other persons in active concert 

or participation with them, or any of them, shall not engage in any employment practice 

which discriminates on the basis of disability. Defendant, its officers, agents, successors 

and other persons in active concert or participation with them, or any of them, shall not 

engage in reprisal or retaliation of any kind against any individual because of such 

individual’s opposition to any act or practice made unlawful under the ADA or because 

such individual made a charge, testified, assisted, or participated in any manner in an 

investigation, proceeding, or hearing under the ADA. 

EEO Policy Review

19. Defendant shall amend its equal employment opportunity (EEO) policy to comply 

with the correct legal standards under the ADA. Specifically, Defendant must amend its 

policy to state that it will provide reasonable accommodations unless doing so would 

impose an undue hardship on Defendant or create a significant risk of substantial harm 

to the health or safety of its employees, which risk cannot be reduced or eliminated by 

reasonable accommodation. Defendant will have this policy reviewed by an Outside 

Consultant (which may be a law firm/ specializing in the area of employment law).

Anti-Discrimination Policy 

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20. After consultation with an Outside Consultant (which may be a law firm 

specializing in the area of employment law), Defendant shall adopt and maintain a 

policy proscribing discrimination based on disability, mandating that Defendant provide 

reasonable accommodations to qualified individuals under the ADA, and proscribing 

retaliation against any employee who complains about discrimination, requests 

reasonable accommodation for a disability, or files a charge of discrimination (“AntiDiscrimination Policy”). The Anti-Discrimination Policy shall contain a description of the 

consequences, up to and including termination, that shall be imposed upon violators of 

the policy and an assurance of non-retaliation against persons and witnesses who 

report to Defendant that they believe they or other employees have been subjected to 

unlawful discrimination and/or who have asked for reasonable accommodations. 

Defendant shall post and keep posted for the duration of this Decree, in a conspicuous 

place, frequented by employees, in each of its facilities, where notices to employees 

and applicants for employment are customarily kept or posted, a copy of the AntiDiscrimination Policy. Within forty-five (45) calendar days of the Court’s entry of this 

Decree, Defendant shall provide a copy of the Anti-Discrimination Policy to all 

employees and also will include the Policy in its Associate Handbook, which is provided 

to all new employees. Within sixty (60) calendar days of the Court’s entry of this Decree 

and again annually through the duration of this Decree, Defendant shall forward a copy 

of the Anti-Discrimination Policy to the Commission and a letter indicating that the AntiDiscrimination Policy has been posted and distributed. 

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Reasonable Accommodation Guidance 

21. After consultation with an Outside Consultant (which may be a law firm 

specializing in the area of employment law), Defendant shall adopt and maintain a 

written policy that advises that Defendant will make reasonable accommodations to 

qualified employees and applicants with disabilities in compliance with applicable laws 

and that sets forth the process for considering and providing those reasonable 

accommodations. The policy will provide guidance on how to determine the 

reasonableness of potential accommodations and, more specifically, will explain that 

Defendant must engage in the interactive process with the applicant/employee in order 

to determine the precise limitations resulting from the disability at issue and the potential 

reasonable accommodations that could assist in overcoming the identified limitations. 

The policy also will advise that Defendant will provide reasonable accommodations 

unless doing so would impose an undue hardship on Defendant or create a significant 

risk of substantial harm to the health or safety of its employees, which risk cannot be 

reduced or eliminated by reasonable accommodation. 

22. The policy must be distributed to all employees in accordance with the AntiDiscrimination Policy provisions in Paragraph 20. Within sixty (60) calendar days of the 

Court’s entry of this Decree, Defendant shall forward a copy of the Reasonable 

Accommodation Guidance to the Commission and a letter indicating that the policy has 

been distributed. 

Training

23. By no later than ninety (90) days following the entry of this Decree, and at least 

twice a year throughout the duration of this Decree, Defendant shall provide live, inCase 1:11-cv-02557-CMA-CBS Document 160 Filed 12/04/15 USDC Colorado Page 6 of 16
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person EEO training for managers, human resources personnel and employees with 

hiring authority that, at a minimum, is no less than three (3) hours in length and 

addresses the following areas: (a) rights of disabled employees and applicants to 

reasonable accommodations under the ADA, including the interactive process for 

determining what accommodations may be appropriate to provide; (b) the procedure for 

employees or applicants to request accommodations and the responsibilities of the 

individual receiving any such requests; (c) Defendant’s procedures for handling 

accommodation requests; (d) the ADA provisions and prohibitions regarding medical 

inquiries; (e) the ADA limitations on use of medical information obtained through lawful 

post-offer/pre-employment medical screening; (f) the interactive process for determining 

reasonable accommodation, including instruction that the interactive process is required 

before an individual may be denied employment because of some medical condition, or 

based on information obtained through post-offer/pre-employment medical screening; 

(g) proper handling of medical information obtained as a result of post-offer/preemployment medical screening or otherwise; and (h) the penalties for engaging in 

discriminatory behavior. These training sessions will be conducted on a timetable which 

ensures that each employee who is newly-hired or promoted into a managerial or 

human resources position, or a position with hiring authority, completes the requisite 

three (3) hours of disability training within six (6) months of being hired or promoted into 

such position. It is understood, however, that any employee required to attend training 

pursuant to this Paragraph 23 shall only be required to attend one (1) such training 

session in any twelve (12) month period. 

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24. By no later than ninety (90) days following the entry of this Decree, Defendant 

shall provide EEO training, which may be either live or on-line, for all other employees 

that, at a minimum, is no less than thirty (30) minutes in length and: (a) explains 

Defendant’s policy on reasonable accommodations as described in Paragraph 21; (b) 

explains how employees should request reasonable accommodations, including the 

titles and contact information for the person(s) to whom the requests should be made; 

and (C) explains the interactive process, including how an employee can initiate that 

process. 

25. All training under Paragraphs 23 and 24 shall be at Defendant’s selection and 

expense, and Defendant shall maintain a register of all personnel who attended the 

training. Unless otherwise approved by the EEOC, training shall be conducted by Erin 

Connolly, Defendant’s in-house employment counsel, or by an Outside Consultant 

(which may be a law firm specializing in the area of employment law), provided that any 

trainer must have experience with ADA training. Within thirty (30) days of completion of 

any training, Defendant also shall provide the EEOC with a copy of the register of 

attendance from the training as well as an outline/copy of the training agenda. 

Defendant agrees that all personnel shall both register and attend the training sessions, 

and no one shall be listed on the register of attendance unless he or she actually 

attended the training. 

VII. Record Keeping and Reporting Provisions 

26. For the duration of this Decree, Defendant shall maintain all records concerning 

implementation of this Decree, including all of the following: 

26.1. Job Postings 

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26.2. Hiring records 

26.3. Medical examination results for all individuals sent for a physical agility 

test and/or medical evaluation; and 

26.4. Complaints of disability discrimination and records documenting 

investigation of such complaints, including witness statements, documents 

compiled, findings, and remedial steps; and 

26.5. Requests for disability accommodation and records documenting efforts to 

provide any such accommodation, including records reflecting what 

accommodations were considered and/or provided. 

27. For each six (6) month period during the duration of this Decree, Defendant shall 

provide written reports to the EEOC that contain the following information: 

27.1. Applicants for Hire. If any candidate was not hired by Defendant within 

the applicable six (6) month period due to his or her disability or the results of a 

pre-employment medical screen, Defendant will provide the name, address and 

telephone number of the candidate and an explanation of why the results of the 

medical screen precluded employment. 

27.2. Reports of Disability Discrimination. If any candidate or employee has 

made either a verbal complaint of alleged disability discrimination (to include any 

complaints regarding the witnessing of alleged disability discrimination) to 

Defendant’s managerial or human resources personnel or a written complaint of 

alleged disability discrimination (to include any complaints regarding the 

witnessing of alleged disability discrimination) to Defendant’s managerial or 

human resources personnel or to a federal, state or local government agency 

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within the applicable six (6) month period, Defendant will provide the following 

information: the name, address and telephone number of the complainant; the 

name, address and telephone number of each person identified as a potential 

witness; a brief summary of the complaint, to include the date of the complaint 

and the names of the individual(s) alleged to have engaged in the discriminatory 

conduct; a copy of the complaint, if applicable; a summary of Defendant’s 

investigation and response to the complaint, including the name of the person(s) 

who investigated and responded to the complaint; and the resolution reached, if 

any. If additional information or documentation is needed by the Commission, a 

Commission representative can contact Erin Connolly, Defendant’s in-house 

employment counsel, or her replacement. 

27.3. Reasonable Accommodation Procedures and Results. A report of any 

disability-related reasonable accommodation requests made to Defendant’s 

managerial or human resources personnel within the applicable six (6) month 

period which includes the following: the name, address and telephone number 

for each person making the request; the date of the request; to whom the request 

was made; a summary of the accommodation requested; the person responsible 

for responding to the request; a summary of the interactive process engaged in 

with respect to the request; a description of the outcome of the request (ie; 

whether an accommodation was provided and, if so, a summary of the 

accommodation and the reasons for granting or denying any particular 

accommodation). If additional information or documentation is needed by the 

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Commission, a Commission representative can contact Erin Connolly, 

Defendant’s in-house employment counsel, or her replacement. 

Any reports required to be provided pursuant to this Paragraph 27 shall be sent to the 

EEOC by no later than forty-five (45) days following the completion of the applicable six 

(6) month period, except the final report which shall be submitted to the EEOC at least 

eight (8) weeks prior to the date on which the Decree is set to expire. 

VII. RETENTION OF JURISDICTION AND ENFORCEMENT OF DECREE

28. This Court shall retain jurisdiction of this cause for purposes of enforcing and 

ensuring compliance with this Decree, to include the jurisdiction to grant any necessary 

extensions of the Decree or other relief. 

29. There is no private right of action to enforce Defendant’s obligations under the 

Decree, and only the Commission, its successors, or assigns may enforce compliance 

herewith. 

30. The Commission may petition this Court for compliance with this Decree at any 

time during which this Court maintains jurisdiction over this action. However, prior to 

petitioning the Court, the Commission must give Defendant a thirty (30) day notice 

period in which to investigate and respond to the Commission’s allegations, followed by 

a fifteen (15) day period to either cure the alleged deficiency or to negotiate a resolution, 

unless a longer period is agreed upon by the Parties. Should the Court determine that 

Defendant has not complied with this Decree, appropriate relief, including extension of 

this Decree for such period as may be necessary to remedy its non-compliance, may be 

ordered. 

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31. Absent extension, this Decree shall expire by its own terms at the end of 

two (2) years from the date of entry without further action by the Parties or the 

Court. 

IX. EEOC AUTHORITY

32. With respect to matters or charges outside the scope of this Decree, this Decree 

shall in no way limit the powers of the Commission to seek to eliminate employment 

practices or acts made unlawful by any of the statutes over which the EEOC has 

enforcement authority, and do not arise out of the claims asserted in this lawsuit. 

X. COSTS AND ATTORNEY'S FEES

33. Each Party shall be responsible for and shall pay its own costs and attorney’s 

fees. 

XI. NOTICE

34. Unless otherwise indicated, any notice, report, or communication required under 

the provisions of this Decree shall be sent by certified mail, postage prepaid, and by 

email, as follows: 

 EEOC: 

 Sean Ratliff 

 Supervisory Trial Attorney 

 EEOC Denver Field Office 

 303 E. 17th Avenue, Suite 410 

 Denver, CO 80203 

 

 BDC: 

 Kris Gleason 

 Human Resources Director 

 Beverage Distributors Corp. 

 14200 E. Moncrieff Place 

 Suite E 

 Aurora, CO 80011 

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XII. SIGNATURES 

35. The Parties agree to the entry of this Decree subject to final approval by the 

Court. 

DATED: December 4, 2015 BY THE COURT: 

 CHRISTINE M. ARGUELLO 

United States District Judge 

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BY CONSENT: 

·H;ff - " , .. j l 1 • • I "\ t\;; \>.j) 

........ ' _ J'lt,.j .L ( 'AJ.<..t \ 

Date: IL

/ . { t< 

BEVERAGE DISTRIBUTORS COMPANY, LLC 

, 

By: 

President Chief Executive Officer 

Date: \ I - L. ) - I 5 

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Denver Field Office 

303 East 17th Avenue, Suite 410 

Denver, CO 80203 

Telephone: 303.866.1381 

E-Mail: lauren.jaeckel@eeoc.gov 

Attorney for Plaintiff 

/s/ . 

J ua B. Kirkpatrick, Esq. 

!TILER MENDELSON, P.C. 

1900 Sixteenth Street, Suite 800 

Denver, CO 80202 

Telephone: 303.362.2877 

E-Mail: JKirkpatrick@littler.com 

Attorney for Defendants 

15 
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EXHIBIT 1 

[Insert Date] 

[Insert Name] 

[Insert Address]

 Re: [Mike Sungaila]. 

Dear [Insert Name]: 

We employed Mr. Sungaila from [insert date] until [insert date], when Mr. Sungaila 

resigned for personal reasons. The last position Mr. Sungaila held was [insert position 

title], and his last rate of pay was [insert last rate of pay]. Mr. Sungaila was a valuable 

employee, and he remains eligible for re-hire. 

Sincerely, 

 

[Insert Name] 

[Insert Title]

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