EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ABL MANAGEMENT INC

Filing 26

CONSENT DECREE. Signed by JUDGE ROBERT L HINKLE on 4/9/17. (kgc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,

v.
ABL MANAGEMENT, INC.,
Defendant

]
]
]
]
]
] Civil Action No. 5:16-cv-00187-RH-GRJ
]
]
]
]
]
]
]

CONSENT DECREE
The Equal Employment Opportunity Commission (“Commission or
Plaintiff”) filed the above-captioned lawsuit against ABL Management, Inc.
(“Defendant”) (collectively, the “Parties”) on June 30, 2016, in this Court, pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (“Title VII”)
and the Civil Rights Act of 1991, 42 U.S.C. §1981a. In the Complaint, the
Commission alleged that Defendant violated Title VII when it retaliated against
Duane Gatson (“Gatson”) for opposing what he allegedly believed to be sexual
harassment.

1

Nothing stated in this Consent Decree constitutes, nor shall be implied,
interpreted as, or provide evidence of an admission of liability or wrongdoing on the
part of Defendant, nor shall it be construed as such.
The Parties do not object to the jurisdiction of this Court over this action and
waive their rights to a hearing and the entry of findings of fact and conclusions of
law. Venue is proper in the U.S. District Court for the Northern District of Florida,
(Panama City Division).

The Parties agree that this Consent Decree is fair,

reasonable, and does not violate the law or public policy. The Title VII rights of the
Parties are protected adequately by this Consent Decree.
In the interest of resolving this matter, and to avoid the expense of further
litigation, the Parties have agreed that this action should be resolved by entry of this
Consent Decree.
It is ORDERED, ADJUDGED AND DECREED:
1.

This Consent Decree resolves all claims arising out of the issues

between the Parties in this lawsuit including, without limitation, back pay,
compensatory and punitive damages, injunctive relief, and costs with interest. This
Consent Decree, including Exhibit A, is limited in its scope to matters covered
explicitly herein, and comprises and constitutes the entirety of the terms and
conditions of the resolution agreement between the Parties.

2

2.

Defendant and its officers, agents, employees, successors, and assigns,

both at the time that this Consent Decree becomes effective and for the duration of
this Consent Decree, shall comply with Title VII’s prohibition against discrimination
based on sex and retaliation.
3.

Defendant shall not retaliate against any employee because he or she:

(i) opposes or opposed discriminatory practices made unlawful by Title VII; (ii) files
or filed a charge of discrimination with the Commission or any state agency that
enforces employment-related anti-discrimination laws, or assists, assisted,
participates, or participated in the filing of a charge of discrimination with the
Commission or any state agency that enforces employment-related antidiscrimination laws; or (iii) assists, assisted, participates or participated in an
investigation or proceeding conducted by the Commission or any state agency that
enforces employment-related anti-discrimination laws.
4.

Defendant shall enforce in its workplace, without limitation, the anti-

retaliation provisions of Title VII.
5.

This Consent Decree shall become effective at that time it is entered by

the Court, and shall be in effect for thirty-six (36) months from the date of its entry
by the Court. This Consent Decree and its terms herein shall apply to Defendant’s
supervisors, managers, and employees at its operations, and at its facilities and

3

locations (including the facilities of clients where ABL employees work), in the
State of Florida.
MONETARY RELIEF
6.

Defendant shall pay the total amount of thirty-five thousand dollars and

zero cents ($35,000.00) to Gatson for alleged back pay, compensatory damages and
punitive damages.
7.

Defendant’s payment shall be issued by a corporate-issued check

payable to Gatson. The corporate-issued check shall be mailed directly to Gatson,
by certified mail, within 21 business days from the date of the entry of this Consent
Decree.
8.

At the same time that Defendant mails the certified check to Gatson,

Defendant shall also mail a copy of the check to the attention of Plaintiff’s Regional
Attorney, Equal Employment Opportunity Commission, Birmingham District
Office, Ridge Park Place, 1130 22nd Street South, Suite 2000, Birmingham, AL
35205. Defendant will issue applicable United States Internal Revenue Service
Forms to Gatson for all such payments by the end of calendar year 2017.
9.

Gatson’s receipt of payment pursuant to this Consent Decree shall not

be conditioned on his agreement to (a) maintain as confidential the terms of this
Consent Decree, or (b) waive his statutory rights to file a charge of discrimination
unrelated to the claims and allegations underlying this Complaint with the Plaintiff
4

or any state or federal agency that enforces employment-related anti-discrimination
laws.
PERSONNEL MATTERS
10.

Within 30 business days of the effective date of this Consent Decree,

Defendant shall convert the basis and designation of Gatson’s separation of
employment from “termination” to “voluntary resignation.” The conversion shall
be reflected in Defendant’s documents, records, and files (electronic or otherwise),
including Gatson’s personnel files, with the removal/expungement of any
documents and information reflecting that Gatson was terminated or discharged. All
of Defendant’s documents, records, and files (electronic or otherwise), including
Gatson’s personnel files, shall be changed to reflect that Gatson “voluntarily
resigned” his position with Defendant. In the event Defendant is contacted by thirdparty employers seeking information regarding Gatson’s employment with
Defendant, Defendant shall state only Gatson’s period of employment and his
position and rate of pay while employed by Defendant.
11.

Defendant shall maintain a confidential file containing Gatson’s

written allegation, if any, against his alleged harasser, and all documents generated
by or associated with the investigation of his allegations, and related to his charge of
discrimination filed with the Commission. Nothing related to Gatson’s allegation of
retaliation shall be maintained in his personnel file or any file referenced or used to
5

respond to third-party employer inquiries. Defendant shall not disclose the contents
of said confidential file, in whole or in part, to any third-party, except when and
where required by applicable statute, rule, regulation, or by an authorized local, state
or federal agency, or by a court of competent jurisdiction, or for accounting, tax,
requisite government agency reporting, insurance and/or reinsurance purposes.
POLICIES AND PROCEDURES
12.

Defendant shall develop, implement, and otherwise maintain anti-

discrimination and retaliation policies and procedures and disseminate to all of its
employees, supervisors, and managers working in the State of Florida within ninety
(90) calendar days of the effective date of this Consent Decree. The policies and
procedures shall include the following:
A.

a statement that Defendant is committed to the following: preventing

discrimination based on sex and retaliation in its workplace; conducting
prompt, good faith investigations of allegations, reports and complaints of
retaliation; taking prompt corrective and remedial action when it determines
retaliation to have occurred; and taking steps to ensure that victims of, and
witnesses to discrimination based on sex and retaliation, or employees who
oppose, or participate in investigations of, discrimination based on sex and
retaliation are not subjected to retaliation;

6

B.

a provision for the training of employees, supervisors, and managers on

(i) how to prevent, recognize and address discrimination based on sex and
retaliation, (ii) employee, supervisor, and manager rights and obligations
under Title VII, and (iii) the extent of confidentiality permitted by law and
protection from retaliation that employees will be afforded if they report
discrimination based on sex, retaliation, or participate in investigations of
discrimination based on sex and retaliation.
C.

a procedure for employees to report actual or perceived discrimination

based on sex and retaliation, including how, and to whom, employees,
supervisors, and managers may report discrimination based on sex and
retaliation;
D.

a procedure for Defendant to conduct lawful, prompt, non-harassing,

victim-sensitive, good-faith investigations into known, or reported,
retaliation;
E.

assurance that Defendant shall protect the confidentiality of

discrimination based on sex and retaliation complainants, victims, and
witnesses to the extent reasonably permitted by law, including not disclosing
the identities of complainants, victims and witnesses, or their allegations,
except on a need-to-know basis, or when and where required by applicable
statute, rule, regulation, or by an authorized local, state, or federal agency, or
7

by a court of competent jurisdiction, or for accounting, tax, requisite agency
reporting, insurance, and/or reinsurance purposes;
F.

a procedure for documenting and recording allegations, complaints and

reports of discrimination based on sex and retaliation;
G.

a procedure for maintaining and retaining all documents, electronic

recordings, and other physical evidence and information generated by,
involving or relating to allegations, complaints and reports of discrimination
based on sex and retaliation;
H.

a procedure for maintaining and retaining all documents, electronic

recordings, and other physical evidence and information generated by,
involving or relating to the investigation of workplace discrimination based
on sex and retaliation;
I.

a provision mandating disciplinary action, up to and including

termination, against employees, supervisors, and managers who engage in
discrimination based on sex and retaliation against employees, supervisors
and managers who engage in activity protected by Title VII;
J.

a provision in the relevant position description that makes

implementation of, and compliance with, ABL’s anti-discrimination and
retaliation policies and procedures a factor in each manager’s and/or
supervisor job performance
8

K.

a provision that provides for disciplinary action, up to and including

termination, of supervisors and managers who fail to implement or comply
with Title VII and Defendant’s retaliation policies and procedures.
13. Defendant shall send a copy of the policies and procedures required by
this Consent Decree to the attention of the Regional Attorney of the Birmingham
District Office, U.S. Equal Employment Opportunity Commission, within 120
calendar days following the effective date of this Consent Decree, or thirty (30)
calendar days following the first dissemination to employees, whichever date is
sooner.
14.

Defendant shall provide a copy of the policies and procedures required

by the Consent Decree to all new employees in the State of Florida within three (3)
days of their hire.
15.

ABL shall post its policies and procedures required by this Consent

Decree in prominent locations frequented by employees in each of its worksite
locations in Florida as well as on its website.
APPOINTMENT OF QUALIFIED CONSULTANT
16.

Within thirty (30) days of the effective date of this Consent Decree,

Defendant shall appoint a qualified consultant or management-level employee who
shall assist it in meeting its obligations, particularly policy and procedure
development and implementation, investigations, and training, under this Consent
9

Decree.

The appointee shall have substantial training, and be objectively

experienced in, the area of EEO compliance, including in conducting Title VII
discrimination based on sex and retaliation investigations, and training employees
and managers in the area of retaliation. The appointment shall last for the entire
period of the Consent Decree.
17.

The qualified consultant or management-level employee described in

this section shall provide guidance and direction for any investigations required by
this Consent Decree.
18.

Defendant shall submit the name, address, telephone number, and

resume of the qualified consultant or management-level employee described in this
section to the Regional Attorney, Equal Employment Opportunity Commission,
Birmingham District Office, Ridge Park Place, 1130 22nd Street South, Suite 2000,
Birmingham, Alabama 35205 within sixty (60) days of the effective date of this
Consent Decree.
19.

Defendant shall not discipline nor retaliate against the consultant or

management-level employee described in this section because he or she engaged in
good faith actions to affect this Consent Decree and Defendant’s policies and
procedures, or comply or ensure compliance with Title VII.

10

CORRECTIVE ACTION
20.

Defendant shall conduct lawful, prompt, non-harassing, victim-

sensitive, and good-faith investigations into known or reported incidents/events of
discrimination based on sex and retaliation. During each investigation, all identified
and potential victims and witnesses must be interviewed, a review of all relevant
documents and physical evidence must be conducted, victim and witness statements
must be obtained and concurrent notes of all victim and witness interviews must be
generated. All documents related to known or reported discrimination based on sex
and retaliation, including the report described above, and any other document
created, generated, reviewed, or collected during the investigation, shall be
maintained in a confidential file during the entire pendency of this Consent Decree.
21.

If Defendant finds or concludes that discrimination based on sex and

retaliation occurred, or is occurring in its workplace, Defendant shall take immediate
corrective action up to, and including but not limited to, imposing discipline on
perpetrators of discrimination based on sex and retaliation, and on supervisors,
managers, and/or HR employees who fail to address known or reported
discrimination based on sex and retaliation, imposing mandatory training, and/or
taking personnel actions. Defendant shall notify the victim and/or complainants of
the corrective action taken.

11

22.

Defendant shall maintain internally for the entire term of this Consent

Decree all information generated or received that relates to any complaints made
about discrimination based on sex and retaliation. Defendant shall produce this
information if requested by the Commission during the effective period of this
Consent Decree.
TRAINING
23.

Defendant shall continue to provide training on the requirements of

Title VII on the following terms:
(a)

Within 120 calendar days of the effective date of this Consent Decree,

Defendant shall provide training to all of its employees, supervisors, managers, and
Executive Director who work in the State of Florida on employee and management
rights and obligations under Title VII, to specifically include Title VII’s prohibitions
against discrimination based on sex and retaliation, and on Defendant’s policies and
procedures against discrimination based on sex and retaliation. The training shall be
repeated once during each 12-month period following the completion of the first
training mandated by this Consent Decree, until the conclusion of this Consent
Decree.
(b)

The training shall include a description and examples of types of

behavior which alone, or combined with other behaviors, could constitute
discrimination based on sex and retaliation. The training also shall explain the steps
12

employees may take to report discrimination based on sex and retaliation and contain
assurances of confidentiality, to the extent permitted by law. In the event and to the
extent applicable and statutory law regarding discrimination based on sex and
retaliation is revised, supplemented and/or amended by Congress during the period
said training is to be conducted, Defendant shall, within thirty calendar days
following any such changes, modify said training to the extent necessary so as to be
consistent and in compliance with current law.
(c)

Each training session shall last one hour, and Defendant shall generate

a registry containing signatures of all persons in attendance at each training session.
Each registry and all training materials shall be retained by Defendant for the
duration of the Consent Decree.
(d)

Within thirty (30) days following each training session, copies of the

registry described in this section shall be sent by certified mail to the EEOC
Birmingham District Office, to the attention of the Regional Attorney, Equal
Employment Opportunity Commission, Birmingham District Office, Ridge Park
Place, 1130 22nd Street South, Suite 2000, Birmingham, Alabama 35205..
(e)

During the term of the Consent Decree, Defendant shall provide a 1-

hour training session, covering the areas described in Subpart (a) above, to each new
employee (including managers, executive directors) who work in the State of
Florida, and within thirty (30) calendar days after the employee’s hire. However,
13

all employees shall be required to attend the training described in Subpart (a).
Written proof of a new employee’s attendance at a training session shall be delivered
to the Plaintiff’s Regional Attorney at the address set forth above within thirty (30)
calendar days after the training.
POSTING OF NOTICE
22.

Within thirty (30) business days after entry of this Consent Decree,

Defendant shall post 8½-inch-by-11-inch sized copies of the Notice attached as
Exhibit A to the Consent Decree on all bulletin boards and any other locations where
Defendant regularly posts announcements and notices required by federal and/or
state law or notices of employment-related policy or practice changes to employees,
except that the Notice shall not contain the header “Exhibit A”. Defendant shall send
by certified mail a copy of the signed Notice, and a written certification by the
Executive Director of the date(s) and location of its posting, to the attention of the
Regional Attorney of Plaintiff’s Birmingham District Office, at the address set forth
above, within ten business (10) days of the posting. Defendant shall take all
reasonable steps to ensure that the posting is not altered, defaced, covered by any
other material, or removed. Should the posted copy become altered, defaced,
covered or removed, or become otherwise illegible, Defendant shall re-post
promptly a legible copy in the same manner as heretofore specified. The posted

14

Notice shall be the same type, style and size as the printing on Exhibit A and shall
bear the signature of the Chief Executive Officer of Defendant.
COSTS AND ATTORNEY FEES
23.

The Defendant shall bear its own attorney’s fees and costs incurred in

this action.
DURATION OF THIS CONSENT DECREE
24.

The duration of this Consent Decree shall be thirty-six (36) months

from the date of its entry by the Court. This Court shall retain jurisdiction over this
action for the duration of the Consent Decree, during which time the Commission
may petition this Court for compliance with this Consent Decree. Should the Court
determine that Defendant has not complied with this Consent Decree, the Court may
order appropriate relief, including but not limited to, the extension of this Consent
Decree for such a period as the Court deems necessary. Absent extension by order
of the Court, this Decree shall expire by its own terms at the end of thirty-six (36)
months from the date of entry, without further action by the Parties.
The Parties agree to the entry of this Consent Decree subject to final approval
by the Court.

APPROVED AND CONSENTED TO:
15

ON BEHALF OF PLAINTIFF EEOC:
_____________
MARSHA L. RUCKER
Regional Attorney
_____________
GERALD MILLER
Supervisory Trial Attorney
_____________
MANEESH VARMA
Senior Trial Attorney
_____________
KURT S. FISCHER
Trial Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
ON BEHALF OF DEFENDANT ABL Management, Inc.:
____________
Authorized Representative
ABL Management, Inc.
The copy of this order bearing the parties’ signatures is in the electronic case
file. See ECF No. 24-1.
SO ORDERED on April 9, 2017.
s/Robert L. Hinkle
United States District Judge
16

"EXHIBIT A"
NOTICE TO ALL EMPLOYEES OF ABL MANAGEMENT, INC.
It is unlawful under Title VII of the Civil Rights Act 10 1964, as amended, (“Title
VII”) to discriminate against an employee on the basis of sex. It also unlawful to
retaliate against any person because the person engaged in any activity protected by
Title VII, including opposing discriminatory conduct, or contacting or having
contact with the EEOC.
If you believe you or any other person has been subjected to sex discrimination,
during the course of your employment with ABL Management, Inc. you may contact
the EEOC for assistance.
Title VII protects you from retaliation by ABL Management, Inc. for (1) opposing
discriminatory practices made unlawful by Title VII, (2) filing a charge or assisting
or participating in the filing of a charge of discrimination under Title VII, or (3)
assisting or participating in an investigation or proceeding brought under Title VII.
If you believe you or any other person is being retaliated against in violation of Title
VII you may contact the Human Resources Department, any Company manager, or
the EEOC for assistance.
a.
EEOC, 1130 22nd Street South, Suite 2000, Birmingham, AL
35205, [phone]; or
b.
EEOC, 63 South Royal Street, Suite 504, Mobile, AL 36602,
[phone].
This Notice must remain posted for three (3) years from the date below
and must not be altered, defaced or covered by any other material. Any
questions about this Notice or compliance with its terms may be directed
to the: Regional Attorney, EEOC Birmingham District Office, Ridge
Park Place, Suite 2000, 1130 – 22nd Street South, Birmingham, Alabama
35205.
_________
Date

______________________________
On Behalf of ABL Management, Inc.

17

WSACTIVELLP:9036749.1

18