CONSENT DECREE
GRAHAM MULLEN, Senior District Judge.
The Equal Employment Opportunity Commission (the "Commission") instituted this action pursuant to Section 107(a) of the Americans with Disabilities Act, as amended (the "ADA"), 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. Section 2000e-5(f)(1) and (3); and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a). The Commission's complaint alleged that GGNSC Charlotte Renaissance, LLC d/b/a Golden LivingCenter-Dartmouth ("Defendant") discharged Sandra Bagwell ("Bagwell") because of her actual disability, failed to provided Bagwell with a reasonable accommodation, and discharged Bagwell because it regarded her as disabled, all in violation of the ADA. In response, Defendant denied any violation of the ADA, and specifically denied any violation of the ADA with regard to the decision to terminate Bagwell's employment. Likewise, the Commission does not in any way imply or suggest that the Defendant was in compliance with the law with respect to its dealings with Bagwell as alleged in this action.
The parties have advised this Court that they desire to resolve the allegations in the Complaint without the burden, expense, and delay of further litigation.
It is therefore the finding of this Court, made on the pleadings and the record as a whole, that: (1) the Commission and the Defendant have stipulated and agree that the Court has jurisdiction over the parties and the subject matter of this action; (2) the purpose and provisions of ADA will be promoted and effectuated by the entry of the Consent Decree; and (3) this Consent Decree resolves all matters in controversy between the parties as provided in paragraphs 1 through 15 below.
It is therefore ORDERED, ADJUDGED AND DECREED as follows:
1. Defendant shall not discriminate against any person on the basis of their actual or perceived disability within the meaning of ADA, including by failing to provide a reasonable accommodation or by discharging employees based on their actual or perceived disability.
2. Defendant shall pay Sandra Bagwell the sum of Fifty Thousand Dollars ($50,000.00) in settlement of the claims raised in this action. Defendant shall make payment as follows: (1) Twenty Thousand Dollars ($20,000.00) representing back pay, by issuing a payroll check payable to Sandra Bagwell minus standard income withholdings consistent with a W-4 form to be completed by Sandra Bagwell; and (2) Thirty Thousand Dollars ($30,000.00) representing compensatory damages by issuing a check payable to Sandra Bagwell for which Sandra Bagwell will complete a form W-9 and will be issued a form 1099. Payment shall be made within ten (10) days after the Court approves this Consent Decree, and Defendant shall mail the check to Sandra Bagwell at an address provided by the Commission. Within ten (10) days after the check has been sent, Defendant shall (1) email a copy of the check and proof of its delivery to Sandra Bagwell to EEOC-CTDO-decree-monitoring@eeoc.gov; or (2) send it by regular mail to — Lynette A. Barnes, Regional Attorney, Equal Employment Opportunity Commission, 129 West Trade Street, Suite 400, Charlotte, NC 28202. Neither the Commission nor Defendant make any representation, or assume any responsibility for any tax liability, assessments, interest, penalties and/or costs that Sandra Bagwell may or may not incur on such payment under local, state and/or federal law.
3. Within ten (10) days of the entry of this Consent Decree by the Court, Defendant shall eliminate from the employment records of Sandra Bagwell any and all documents, entries, or references of any kind relating to the facts and circumstances which led to the filing of EEOC Charge Number 430-2009-02776 and the related events that occurred thereafter, including this litigation. Within fifteen (15) days of the entry of this Consent Decree by the Court, Defendant shall report compliance with this provision to the Commission.
4. Defendant uses a third party vendor to provide its neutral references for its employees. Defendant agrees that if it receives any inquiry about Sandra Bagwell from a potential employer, it will provide in response only the information provided by its third party vendor: date of hire; last date worked; and position.
5. Within thirty (30) days of the entry of this Consent Decree by the Court, Defendant shall re-distribute and maintain its formal, written anti-discrimination policy (attached as Exhibit "A"), which shall include but not be limited to: the requirements of the federal equal employment opportunity laws, including ADA and its prohibition against discrimination based on disability; the procedure for requesting leave based on an impairment or disability; and the procedure for reporting discrimination. Within thirty-five (35) days of the entry of this Consent Decree, Defendant shall report compliance to the Commission. During the term of this Consent Decree, Defendant shall distribute the policy to all new employees at the GGNSC Charlotte Renaissance LLC facility and review it with them at the time of orientation.
6. During the term of this Consent Decree, Defendant shall post a copy of the policy described in paragraph 5, supra, in the GGNSC Charlotte Renaissance LLC facility in a place where it is visible to employees. If the policy becomes defaced or unreadable, Defendant shall replace it by posting another copy of the policy. Within one hundred (100) days after the Consent Decree is entered, Defendant will post the policy and notify the Commission that it has been posted.
7. During the term of this Consent Decree, Defendant shall provide an annual training program to all of its managers and department heads in the GGNSC Charlotte Renaissance LLC facility. Each training program shall include the following: an explanation of the requirements of the ADA and its prohibition against retaliation in the workplace; and an explanation that although an individual has exhausted leave pursuant to the Family and Medical Leave Act, the individual might still be entitled to leave pursuant to the ADA. Each training program shall also include an explanation of Defendant's policy referenced in paragraph 5 supra, and an explanation of the rights and responsibilities of employees and managers under the policy.
The first training program shall be completed within one hundred (100) days after entry of the Consent Decree by the Court and the second training program shall be completed approximately a year after the first training program. During the remainder of the Consent Decree, Defendant shall provide this same training to any newly hired or promoted managers and department heads at GGNSC Charlotte Renaissance LLC facility within thirty (30) days of hire or promotion into management at the facility. At least fifteen (15) days prior to the initial program, Defendant shall provide the Commission with an agenda for the training program. Within ten (10) days after completion of each training program, Defendant shall certify to the Commission the specific training which was undertaken and shall provide the Commission with a roster of all employees in attendance. Should Defendant change or modify its training program, it must provide to the Commission, at least fifteen (15) days prior to the program, an agenda for the subsequent training program that it is providing.
8. Beginning within thirty (30) days after the entry of this Consent Decree by the Court, and continuing throughout the term of this Consent Decree, Defendant shall conspicuously post the attached Employee Notice, marked Exhibit B, hereby made a part of this Consent Decree, in a place where it is visible to employees in the GGNSC Charlotte Renaissance LLC facility. If the Notice becomes defaced or unreadable, Defendant shall replace it by posting another copy of the Notice. Within forty-five (45) days after entry of this Consent Decree, Defendant shall notify the Commission that the Notice has been posted pursuant to this provision.
9. During the term of this Consent Decree, Defendant shall provide the Commission with reports at six (6) month intervals, with the first report being due four (4) months after entry by the Court of this Consent Decree. The reports will include the following information:
A. identify each individual employed by Defendant at its Golden Living Center-Dartmouth facility who at any time during the reporting period requested an accommodation for a disability or impairment, including by way of identification each person's name, address, telephone number, position, date of accommodation request, accommodation requested, whether the request was granted, and what, if any, accommodation was provided to the individual; and
B. for each individual identified in response to 9.A. above who was not provided with an accommodation, provide a detailed explanation as to why the request was not granted, identify whether the individual was discharged and the reason for the discharge, and identify all individual(s) involved in the decision regarding the accommodation request and discharge.
C. Defendant agrees that should the Commission request the social security numbers of the individuals identified in 9.A., Defendant must provide the social security numbers within seventy-two (72) hours of the Commission's request.
In the event there is no activity to report pursuant to this paragraph, Defendant shall send the Commission a "negative" report indicating no activity.
10. The Commission may review compliance with this Consent Decree. As part of such review, the Commission may inspect Defendant's GGNSC Charlotte Renaissance LLC facility, interview employees, and examine and copy documents.
11. If anytime during the term of this Consent Decree, the Commission believes that Defendant is in violation of the Consent Decree, the Commission shall give notice of the alleged violation to Defendant. Defendant shall have twenty (20) days in which to investigate and respond to the allegations. Thereafter, the parties shall then have a period of ten (10) days or such additional period as may be agreed upon by them, in which to engage in negotiation regarding such allegations before the Commission exercises any remedy provided by law.
12. The term of this Consent Decree shall be for two (2) years from its entry by the Court.
13. All reports or other documents sent to the Commission by Defendant pursuant to this Consent Decree shall be sent by electronic mail to: (1) EEOC-CTDO-decree-monitoring@eeoc.gov; or (2) if by regular mail to — Lynette A. Barnes, Regional Attorney, Equal Employment Opportunity Commission, 129 West Trade Street, Suite 400, Charlotte, NC 28202.
14. Each party shall bear its own costs and attorney's fees.
15. This Court shall retain jurisdiction of this cause for purposes of monitoring compliance with this Consent Decree and entry of such further orders as may be necessary or appropriate, during the two year term thereof.
So ordered.
EXHIBIT A
Document Title Non-Discrimination
Policy Procedure Standard Instruction Guide
Policy/Document Number Document
400 Type _X___ ___ ___ ____
Manual Name Section Name Effective Date
Compliance Employee Conduct 11/01/10
The following is general information about the company's policy on non-discrimination, equal opportunity and discrimination complaint procedures.
The policy describes the services available to persons who believe they have been discriminated against by the company.
Policy As a recipient of Federal financial assistance, the company does not exclude, deny benefits to, or otherwise discriminate against any person on the ground of race, color, or national origin, or on the basis of disability or age in admission to, participation in, or receipt of the services and benefits under any of its programs and activities, whether carried out by the company directly or through a contractor or any other entity with which the company arranges to carry out its programs and activities.
It is a violation of the company's Non-Discrimination policy when inequitable practices, based on the aforementioned factors, occur in service delivery and/or employment. Some of these practices are listed as follows:
• Deny services or benefits
• Refuse to hire or promote
• Fail to provide appropriate interpreter services, include American Sign Language (ASL)
• Limit access to services because of inaccessible facilities
• Fail to make reasonable accommodations to allow full participation of persons with disabilities in all programs, activities and services
• Deny the opportunity to act as a consultant or volunteer or serve on committees and boards
Non-Discrimination Plan The company's Non-Discrimination Plan reflects the company's official policy and commitment that there shall be opportunity, free from discrimination, for all persons. The plan applies to services and employment by the company and its contractors.
The Non-Discrimination Plan is in accordance with the provisions of Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and Regulations of the U.S. Department of Health and Human Services issued pursuant to these statutes at Title 45 Code of Federal Regulations Parts 80, 84, and 91. A copy of the company's Non-Discrimination Plan is available at the Executive Director's Office.
Discrimination Complaints If you believe the company has discriminated against you, contact the Compliance Hotline (800) 572-9981. You may also file a complaint with the following agencies:
U.S. Department of Health and Human Services, Office of Civil Rights U.S. Equal Employment Opportunity Commission.
U.S. Department of Agriculture, Food and Nutrition Service (discrimination in administering the Food Stamp Program)
Filing a complaint with the company does not preserve the time frame for filing a complaint with any of the external agencies listed previously. You must contact each agency to determine the specific time frame (usually 180 days) for filing complaints with them.
You will be advised of the investigation's findings. Confidentiality cannot be guaranteed; however, information will be treated as confidentially as possible. If it is determined that discrimination has occurred, we will initiate conciliation attempts and recommend remedial and corrective actions to eliminate the discriminatory practice(s). If it is determined that discrimination has not occurred, you may submit a written Request for Reconsideration to the Office for Equal Opportunity, within (30) days from receipt of the written Report of Finding.
In case of questions concerning this policy, or in the event of a desire to file a complaint alleging violations of the above, please contact:
Marie Infante
Chief Compliance Officer and General Counsel Healthcare
(877) 823-8375
TDD (479) 201-5259
Retaliation In accordance with the state and federal laws, any person who filed a complaint or assisted the investigation of a complaint, shall not be intimidated, threatened, coerced, or discriminated against. Complaints of this nature must be filed within 180 days of the alleged retaliatory act(s).
Date Version Revised By Description
11/10/10 4.0 Compliance Revised
Revision 10/15/07 3.0 Compliance Policy Transferred to Compliance manual
History
01/01/2007 2.0 Human Resources Updated to reflect new Company
09/01/2004 1.0 Human Resources BH HR-916 revised
CONFIDENTIAL AND PROPRIETARY INFORMATION
Printed in the United States of America
All rights reserved. This document is solely for use by Golden Living and its customers. No part of this document may be otherwise reproduced, stored in a retrieval system, or transcribed, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise.
EXHIBIT B
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
EQUAL EMPLOYMENT )
OPPORTUNITY COMMISSION, ) CIVIL ACTION NO. 3:12cv176
Plaintiff, )
)
v. ) EMPLOYEE NOTICE
)
GGNSC CHARLOTTE RENAISSANCE, LLC )
d/b/a GOLDEN LIVINGCENTER-DARTMOUTH, )
Defendant. )
)
1. This Notice is posted pursuant to a settlement between the U.S. Equal Employment Opportunity Commission ("EEOC) and GGNSC Charlotte Renaissance, LLC d/b/a Golden LivingCenter-Dartmouth, ("Golden Living") in a case of discrimination based on disability. Specifically, the EEOC alleged that Golden Living discharged Sandra Bagwell because of her actual disability, failed to provide Ms. Bagwell with a reasonable accommodation, and discharged Ms. Bagwell because it regarded her as disabled, all in violation of the Americans with Disabilities Act (the "ADA"). As part of the settlement, Golden Living agreed to pay monetary damages to Ms. Bagwell and to take other action set out in the Consent Decree resolving this matter.
2. Federal law requires that employers not discriminate against any employee or applicant for employment because of the individual's race, color, religion, sex, national origin, age (40 or older) or disability. The ADA specifically prohibits discrimination based on an individual's disability. Federal law also prohibits retaliation against employees because they have opposed unlawful employment discrimination, or because they gave testimony, provided assistance in, or participated in an employment discrimination investigation, proceeding, or hearing, or otherwise asserted their rights under the laws enforced by the EEOC.
3. Golden Living will comply with such federal laws in all respects. Furthermore, Golden Living will not take any actions against employees because they have exercised their rights, reported an alleged violation under the law, or given testimony, assistance, or participation in any investigation, proceeding, or hearing conducted by the U.S. Equal Employment Opportunity Commission.
Employees have the right and are encouraged to exercise that right, to report allegations of employment discrimination in the workplace. An employee may contact their local U.S. Equal Employment Opportunity Commission field office for the purpose of filing a charge of employment discrimination. To locate the nearest field office, contact:
Equal Employment Opportunity Commission
131 M. Street, N.E.
Washington, DC 20507
TEL: 1-800-669-4000
TTY: 1-800-669-6820
This Notice will remain posted for at least two (2) years by agreement with the EEOC.
DO NOT REMOVE THIS NOTICE UNTIL: ___________
