EEOC and Andy Martinez v. Professional Transit Management LTD L

7/28/2019 EEOC and Andy Martinez v. Professional Transit Management LTD L

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I N T H E U N I T E D S T A T E S D I S T R I C T C O U R TF O R T H E D I S T R I C T O F C O L O R A D OCi v i l A c t i o n N o . 0 6 - c v - 0 1 9 1 5 - M S K - M J WE Q U A L E M P L O Y M E N T O P P O R T U N I T Y C O M M I S S I O N ,

Plaintiff,andA N D Y M A R T I N E Z ,

P la in t i f f - In te rvener ,v .

P RO F E S S I O N A L T RA N S I T M A N A G E M E N T , L T D , L L C d / b / a S P RI N G S T RA N S I T

D e f e n d a n t .

C O N S E N T D E C R E E


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R E C I T A L S1. This matter was instituted by Plaintiff, Equal Employment Opportunity Commission("Comm ission" or "Plain tiff or "EE OC "), an agency of the United States government, allegingthat Defendant, Professional Transit Management, Ltd. d/b/a Springs Transit (ProfessionalTransit Management), unlawfully discriminated against Andy Martinez and a class ofemployees and former employees on the basis of a hostile work environment based on color andrace (African American) and national origin (Hispanic, Asian) in violation of Title VII of theCivil Rights Act of 1964 (Title VII). Furthermore, the Commission alleges Defendant was awareof the hostile work environment and failed to take effective measures to stop it. Ma rtinez hasintervened in this case and has made substantially the same allegations as the EEOC.Collectively, the EEOC, Defendant, and Martinez will be called "the Parties." Defendant hasdenied any liability for the claims as alleged.2 . The Parties, desire to settle this action by an appropriate Consent Decree ("Decree"), andagreements between Defendant and its present and former employees. The Parties agree to thejurisd iction of this Court over the Parties an d t he subject matter of this action, and agree to thepower of this Court to enter a Consent Decree enforceable against Defendant.3 . This Decree is final and binding upon the Parties as to the issues resolved, as well asupon their successors and assigns.4 . The Parties agree that this Consent Decree fairly resolves the issues alleged in thislawsuit, and constitutes a complete resolution of all of the Commission's claims of unlawfulemployment practices under Title VII arising from this litigation and the charges as follows:Ronn ie Huery, Charge # 541-2006-01134; Ha rry W allace, Charge #541-2006-01125; EliJackson, Charge#541-2006-00921; Andy Martinez Charges 541-2006-02256 and


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32 0-200 5-0073 5. For the purpose of amicably reso lving disputed claims, the Defendant joinswith the Com mission an d Plaintiff Intervene r in requ esting this Court to adjudge as follows:5. This Consent Decree resolves al l claims al leged in this lawsui t , includingbackpay, f ront pay , compensa tory and puni t ive damages , i n t e res t , i n junc t ive relief,at torneys ' fees and costs and any other claims that may be raised out of the i ssues inthis lawsui t .

J U R I S D I C T I O N6. The Court has jurisd ict ion o ver the Part ies an d the subject mat ter of this law sui t .The Court shal l retain jurisdict ion of this act ion for the durat ion of the Consent Decreefor t he purpose s of en ter ing a ll o rders , j ud gm en t s , and decrees which may be nec essaryto implement the rel ief provided herein.

GENERAL PROVISIONS7. Scope . This Consent Decree covers a l l Profess iona l Trans i t Management ' sem p l oyees .8. Term of Consen t Decree . This Consent Decree shal l remain in effect for three(3) years after the Effect ive D ate. In the ev ent the terms and obl igat ion s out l ined inth i s Consent Decree a re not comple t ed wi th in the t e rm, the EEOC and DefendantProfessional Transi t Management shal l meet and confer concerning al l mat ters that area l l eged to cons t i tu t e noncomp l i ance . Th e Com miss ion res erves the r igh t t o file anenforcement ac t ion under Sec t ion VIII ("Enforcement of Consent Decree" ) of t h i sConsent Decree to ex tend the Consent Decree for whatever per iod i s necessary to a l lowProfessional Transi t Management to comply ful ly wi th the terms of this ConsentD ec ree .

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9. Com pl iance wi th Federal E E O L a w . Nothing in this Consent Decree shal l becons t rued to l imi t o r reduce Profess iona l Trans i t Management ' s ob l iga t ion to complywi th the s t a tu t es enforced by the Commiss ion .10. Effect o f Consent Decree . This Consent Decree i s f inal and binding upon thePart ies as to the i ssues resolved, as wel l as upon thei r successors and assigns.Profess iona l Trans i t Management ' s compl i ance wi th th i s Consent Decree wi l l fu l ly andcompletely resolve al l i ssues of law and fact which could be raised by the Commission,Mar t inez or any "Class Member , " i nc luding Tom Hi t t , Gary LeDoux, E l i e Jackson ,Ronnie Huery and Harry Wal l ace , a r i s ing out of t he be low-referenced charges and th i sl i t i ga t ion aga ins t Defendant Profess iona l Trans i t Management .1 1 . Complete Consent Decree . This Consent Decree cons t i t u t es t he comple t eunderstanding among the Part ies wi th respect to the mat ters herein. The Part ies agreetha t t h i s Consent Decree reso lves a l l i ssues ra i sed in EEOC Charge Numbers 320-2005-0 0 7 3 5 , 541-2 006-0092 1 , 541 -2 006-0112 5 , 541 -2 006-01134 , 541 -2 006-02 2 56 , and 541 -2006-01869, and the i ssues al leged by EEOC and Mart inez in this lawsui t , andconst i tutes a complete resolut ion of al l the claims of EEOC, Mart inez, Hi t t , LeDoux,Jackson, Wal l ace and Huery , aga ins t Defendant Profess iona l Trans i t Management ofunlawful employment prac t i ces under T i t l e VII .1 2 . Severabi l i ty . I f one or more provi s ions of t h i s Consent Decree a re renderedunlawful or unenforceable by act of Congress or by decision of the Uni ted StatesSupreme Cour t , t he EEOC and Defendant Profess iona l Trans i t Management sha l la t t empt to agree upon what amendment s to th i s Consent Decree , i f any , a re appropr i a t e

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to effectuate the purp oses of th is Co nse nt De cree . In any event , the unaffectedprov is ions wi l l r emain en fo rceab le .

A F F I R M A T I V E R E L I E F13 . Notice and Post ing of Consent Decree Not i ce .

a. Posting. Within th ir ty (30) days of the Effect ive Date of th is ConsentDecree , P ro fess iona l T rans i t Management sha l l consp icuous ly pos t the Not ice toEmployees a t tached he re to as Exh ib i t A, on the Human Resources bu l le t in board .14 . N o D i sc r im i n a t i o n . Profess iona l T rans i t Management sha l l no t d i sc r imina teaga ins t any employee o r app l ican t in h i r ing , p romot ions , pay , a ss ignment o f du t ie s ,pe r fo rmance eva lua t ion , d i sc ip l ine , t e rms , o r knowing ly sub jec t an employee to ahos t i le work env i ronment , because o f na t ion a l o r ig in , race and /o r co lo r . P ro fess iona lTrans i t Management sha l l cons ide r a l l Af r ican Amer ican , Hispan ic , and As ianapp l ican ts on the same bas is a s a l l o the r a pp l ica n ts . P ro fess iona l T rans i t M anagem entsha l l a f fo rd a l l Af r ican Amer ican , Hispan ic , and As ian employees the same t ra in ing andcond i t ions o f employm ent i t a f fords a l l o the r e mp loyee s in s imi la r pos i t ions inc lud ingfa i r and nond isc r imina to ry te s t ing fo r p romot ions .15. No Reta l ia t ion . Profess iona l T rans i t Management sha l l no t re ta l ia te aga ins t anycur ren t o r fo rmer employee o r Class Member fo r h i s o r he r pa r t ic ipa t ion in the EEOCprocess , for part ic ipat ion in the invest igat ion by the EEOC into th is matter , forpart ic ipat ion in th is lawsuit , or for asser t ing any r ights under th is Consent Decree .

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16 . EEO Manager.a. Professional Transit Management will designate an EEO Manager to oversee

Professional Transit Management's compliance with and implementation of thisConsent Decree.

b. The EEO Manager will be respo nsible for: coordinating Professional Tran sit Managem ent's compliance with

anti-discrimination laws; monitoring Professional Tran sit Manag ement's compliance with

this Consent Decree; maintaining records to be preserve d under Paragraph 23

("Reporting and Recordkeeping") of this Consent Decree; submitting the repo rts requ ired under Paragraph 24 ("Repo rting and

Recordkeeping"); and assisting in dev elop me nt and implem entation of Professional

Transit Management's EEO Training Program, as required underthe following Section ("EEO Training") of this Consent Decree.

17. EEO Training.a. Development of EEO Training Program. Within 20 (twenty) days of the

Effective Date of this Consent Decree, Professional Transit Management shall submit tothe EEOC an EEO training program for non-supervisory employees, supervisoryemployees, and human resource emp loyees . Each training program will include thefollowing information: (i) a detailed agenda; (ii) curriculum vitae(s) for theindividual(s) who will conduct the training; (iii) a plan to ensure that all employees

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receive the required training. Any dispute b etwe en Professional Transit Managem entand EEOC as to the adequacy of the Train ing Program shall be resolved under theinformal resolution procedures set forth below.

b. Amount of Training Required. Non-Supervisory Em ployees. Professional Transit Management

will provide its non-supervisory employees at least two (2) hours ofEEO training during the first year of this Consent Decree and anadditional one (1) hour of training will be provided in each of thefollowing two years. Th is trainin g may be by videotap e orcomputer pre sen tatio n and ma y be made by qualified ProfessionalTransit Management human resource employees.

Supervisory Employees. Professional Transit Management willprovide its supervisory employees at least four (4) hours of EEOtraining during the first year of this Consent Decree and anadditional four (4) hours of training will be provided in each of thefollowing two years.

Human Resource Em ploy ees. Professional Transit Managementwill provide its human resource managers and directors at leasteight (8) hours of EEO training within the first year of this ConsentDecree and an additional eight (8) hours of training will beprovided in the following year.

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Required Subjects of Training. At a minimum, the EEO trainingprograms shall include the following:

instruction on the requirements of all applicable equalemployment opportunity laws including, but not limited toTitle VII of the Civil Rights Act of 1964, as amended, theAge Discrimination in Employment Act, and the Americanswith Disabilities Act;a review of Defendant Professional Transit ManagementCorporation's non-discrimination employment policies;the prohibition on retaliating against any employee whocomplains about discrimination against himself or others, orparticipates in an investigation of a discriminationcomplaint;training for supervisors, managers and human resourceemployees shall include instruction on how to recognizecomplaints of discrimination and how to recognizeinappropriate beh avio r in the workplace. It will emphasizethe company's obligation to take prompt action in responseto discrimination complaints, and emphasize the HumanResource Employee's role in conducting investigations andresponding to and implementing discipline.

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18 . Additional Training.During the first year of this Consent Decree, Professional Transit Management will

request its successor, Laidlaw, to provide at least one (1) hour of training for employeeswho grade tests for mechanic positions to enable them to conduct and score tests foradvancement to mechanic positions in an objective, fair, and nondiscriminatory manner.19. Modification and Implementation of EEO Policies and Procedures.

a. Review of Po licies. During the first year of this Consent Decree,Professional Transit Management will issue or reissue policies implementing a ZeroTolerance Statement, Policy Statement on a Harassment-Free Workplace andReaffirmation of Equal Employment O pportu nities Policy. After making theserevisions or additional policies, Defendant Professional Transit Management will send acopy to the EEOC.

b. EEOC Input Not a W aiver. Under no circumstances shall the EEOC, bycommenting or electing not to comment upon Professional Transit Management'sproposed changes or amendments, be deemed to have waived its right to investigate orlitigate any alleged adverse effects of said policy upon equal employment opportunities.

MONETARY RELIEF20. Class Monetary Relief.

a. Class Settlement Amount In full settlement of all monetary claims of theCharging Parties and/or Class Members as set out in Exhibit B, attached, includingMartinez, Defendant Professional Transit Management shall pay the sum of$450,000.00 ("Class Settlement Funds"), to be distributed as listed on Exhibit C. All ofthe damages going to the Class Members shall be for compensatory damages.

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b. Distribution. Twenty (20) days after the Consent Decree is entered andordered, Defendant Professional Transit Management shall disburse the ClassSettlement Funds to the Claimants and/or Class Members in accordance with Exhibit C.Professional Transit Management will send these checks to Claimants and/or ClassMembers via certified mail or overnight mail, with a copy of the check mailed to EEOCcoun sel. Defendant will not con dition th e receipt of individual relief on the classmembers' agreement to (a) maintain as confidential the terms of this decree, (b) waivehis or her statutory right to file a charge with any federal or state anti-discriminationagency, or (c) waive his or her right to apply for a position with the Defendant.

c. Taxes. Defendant shall prepare and distribute tax-reporting forms toMartinez and each Class Member/Claimant who receives payment under this ConsentDecre e. Distribution to the Class Me mb ers/C laim ants will be made on an IRS form1099. Defendant Professional Transit Management shall make appropriate reports tothe Internal Revenue Service and other tax authorities.

REPORTING AND RECORD KEEPING21. Document Preservation.

a. Records. For the duration of the Consent Decree, Professional TransitManagement agrees to maintain such records as are necessary to demonstrate itscompliance with this Consent Decree and verify that the reports submitted are accurate,including but not limited to the documents specifically identified below.

b. Retention. During the term of the Consent Decree, Professional TransitManagement shall retain the following hard-copy and computer records:

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all com plaints (if any ) of its emp loyees of discrim ination orharassment based upon national origin, race or color, and all non-privileged records of the investigation of those complaints,including any action taken as a result of an investigation;

all com plaints (if any ) of its emp loyees of retaliation based onnational origin, race or color, and all non-privileged records of theinvestigation of those complaints, including any action taken as aresult of an investigation.

22 . Reports.a. Initial Report. Within thirty (30) days of the Effective Date of this Consent

Decree, Professional Transit Management shall provide the EEOC with verification ofwhat actions have been taken or will be taken that all supervisors and human resourceemployees with authority over people employed by Professional Transit Management,have attended training on the terms and provisions of this Consent Decree.

b. Periodic Reports. During the term of this Con sent Decree, the EEO Manager shall

submit semi-annual rep ort s to the EEO C. With each report, theEEO Manager shall submit documentation related to this ConsentDecree.

The first reportin g per iod will begin on the Effective Date of thisConsent Decree, and will end on December 3 1, 2007. Eachsubsequent reporting period will be six (6) calendar months, forexample, June 30, 2008 and D ecember 3 1, 2008.


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Each report shall conta in the following information for the releva ntreporting period:

copies of all complaints, formal or informal, of nationalorigin, race or color discrimination, harassment or retaliationmade by Defendant's emp loyees, and copies of the non-privileged investigative files relating to each complaint;copies of all action or discipline taken as a result of thecomplaints above; andverification of employee attendance for all EEO trainingconducted during the reporting period.

ENFORCEMENT OF CONSENT DECREE23. Enforcement by EEO C. It is expressly agreed that if EEOC concludes thatProfessional Transit Management has breached this Consent Decree, EEOC may initiatean action in this Court, after complying with the informal resolution procedures setforth in Paragraph 24, below.24 . Requirement of Informal Resolution Efforts. Prior to initiating an action toenforce the Consent Decree, the EEOC will provide written notice to DefendantProfessional Transit Management and the EEO Manager, of the nature of the dispute.This notice shall specify the particular provision(s) believed to have been breached anda statement of the issues in dispute. The notice may also include a reasonable requestfor documen ts or information relevan t to the dispu te. The parties shall have ten days toinformally resolve the dispute before any formal action is taken.

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MISCELLANEOUS PROVISIONS25. Implementation. The Commission and Defendant Professional TransitManagement agree to take all steps that may be necessary to fully effectuate the termsof this Consent Decree.26. Notice. Any notice, report, or com mu nication required under the provisions ofthis Consent Decree shall be sent by overnight mail, postage prepaid, and by e-mail, tothe appropriate representatives of the Commission and Professional TransitManagement as follows:

Regional AttorneyPhoenix District Office33 00 N. Central Ave.Phoenix, Arizona 85012Nancy A. Weeks, Esq.Denver Field OfficeEqual Employment Opportunity Commission303 E. 17th Avenue, Suite 510Denver, Colorado 80203e-mail: [email protected]

and to Defendant Professional Transit Management Corporation as follows:Professional Transit Management, Ltd.Attn: Tom Hock, Esq.6405 Branch Hill-Guinea Pike, #203Loveland, OH 45140

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mailto:[email protected]:[email protected]


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S I G N A T U R E S

A P P R O V E D A S T O F O R M :

M A R Y J O O ' N E I L LRegiona l At to rney

N A N C Y A . W E E K SSuperv iso ry T r ia l At to rney( 3 0 3 ) 8 6 6 - 1 9 4 7

A N N F U L L E RTria l At to rney( 3 0 3 ) 8 6 6 - 1 3 1 9Equa l Employment Oppor tun i tyC o m m i s s i o n303 E. 17th Avenue, Suite 510Denver , Co lo rado 80203

S H E R M A N & H O W A R D L . L .C .

Glenn H. Sch labsAt to rn ey fo r P ro fess iona l T rans i tM a n a g e m e n t

At to rney fo r In te rvener Mar t inez andClass Members Wal lace , Huery andJ a c k s o n

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S I G N A T U R E S

APPROVED AS TO FORM:SHERMAN & HOWARD L.L.C.

MARY JO O'NEILLRegional Attorney Glenn H. SchlabsAttorney for Professional TransitManagement

-gJCQ-^NANCY A.^WEEKSSupervisory Trial Attorney(303) 866-1947/QhtAU


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S I G N A T U R E S

APPROVED AS TO FORM:SHERMAN & HOWARD L .L .C.

fARY JO O'Regional Attjofhe Glenn H. SchlabsAttorney for Professional TransitManagement

NANCY A. WEEKSSupervisory Trial Attorney( 3 0 3 ) 8 6 6 - 1 9 4 7Matthew Mart inAttorney for Intervener Martinez andClass Members Wallace , Huery andJackson

ANN FULLERTrial Attorney(303) 866-1319Equal Employment OpportunityCommission303 E. 17th Avenue, Suite 510Denver, Colorado 80203

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SO ORDERED, ADJUDGED and DECR EED this day of , 2007.

United States District Court Judge


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E X H I B I T AN O T IC E T O E M P L O Y E E S

This Notice is being posted as part of the remedy agreed to pursuant to a Consent Decreebetween Professional Transit Management and the U.S. Equal Employment OpportunityCommission (EEOC).Unlawful Discrimination: Under federal law, it is unlawful for an employer to discriminatebased on race, color, religion, sex, national orig in, ag e (over 40), or disability. This m eansthat a supervisor or manager cannot make decisions about hiring, promotion, pay, or otherconditions of employment, based on race, color, religion, sex, national origin, age (over 40), ordisability. This also means that the work envi ronm ent should be free from harassmen t orridicule based on race, color, religion, sex, national origin, age (over 40), or disability.Unlawful Retaliation: Retaliation against a person who files a charge of discrimination,participates in an investigation, or opposes an unlawful employment practice is prohibited.Reporting Improper Conduct: If you are aware of any events, conduct, or information,which you believe may indicate some improper discrimination or harassment, it is veryimportant that you report the information so the necessary steps may be taken to investigate,identify, and promptly remedy any problems. You may report such improper to conduct to anyof the following:Reporting to Professional Transit Management: Within the Professional TransitManagement organization, you may make such a report to any employee in the HumanResource Departm ent, any manager or supervisor. By reporting a problem to P rofessionalTransit Management, you do not waive any rights to file a charge of discrimination with theEEOC or the Colorado Civil Rights Division.Reporting to the EEO Manager: Under the Consent Decree between EEOC and ProfessionalTransit Managem ent, has been designated as an EEO Ma nager to ensure


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enforcement of the Consent Decree. By reporting a problem to the EEO Coord inator, you donot waive any rights to file a charge of discrimination with the EEOC or the Colorado CivilRigh ts Division. You may directly contact the EEO M anager:You may also contact at:Reporting to the U.S. Equal Employment Opportunity Commission: The EEOC isresponsible for enforcing federal laws prohibiting employment discrimination based on race,colo r, religion, sex, national origin, age (over 40), or disability . You may directly contact th eDenver Field Office of the EEOC:

303 East 17th Avenue, Suite 510Denver, Colorado 80205Telephone: 303-866-1300TTY: 303-866-1950Fax: 303-866-1085Toll Free : 1-800-669-4000

Reporting to the Colorado Civil Rights Division: The CCRD is the agency responsible forenforcing state laws prohibiting employment discrimination based on race, color, religion, sex,nation al origin, age (over 40), or disability. You may directly contact the Colora do CivilRights Division:1560 Broadway, Suite 1050,Denver, Colorado 80202Telephone: 303-894-2997Toll Free: 800-262-4845

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EXHIBIT B1. Andy Martinez2. Thomas Hitt3 . Elie Jackson4. Ronnie Huery5. Ha rry W allace6. GaryLeDoux


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EXHIBIT C

1. Andy Martinez- $95,337.002. Thomas Hitt-$64,152.003 . Elie Jackson-$95,337.004. Ronnie Huery-$95,337.005. Harry Wallace-$95,337.006. Gary LeDoux-$4,500.00

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EEOC and Andy Martinez v. Professional Transit Management LTD L