Equal Employment Opportunity Commission v. Polycon Industries Inc et al
Filing
55
OPINION AND ORDER: The EEOC may now move for final approval of the Distribution List (providing the different financial allocations with the inclusion of Guy Parks). Signed by Judge Rudy Lozano on 10/11/2011. (rmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
vs.
POLYCON INDUSTRIES, INC.,
)
)
)
)
)
)
)
)
)
Case No.: 2:09-CV-141
Defendant.
OPINION AND ORDER
Pursuant to Section 506 of the Consent Decree (DE # 32-1),
this Court held a Fairness Hearing regarding the Distribution List
(the names of class members the EEOC determined are eligible for
relief), on September 27, 2011.
Counsel for the EEOC and Polycon
attended, as did 16 women: Deborah McKnight, Guy Parks, Irene
Quiroz, Diane Mitchell, Veneta Anthony, Guillermina Avalos, Johanna
Gomez, Diana Forrester, Irma Ramirez, Estella Carrera, Ileana Pena,
Ampara Gomez, Diantha Whetsell, Trecia Green, Yolanda Robinson, and
Bridgett Jones who objected to the proposed distribution.
All of
these women, with the exception of Amparo Gomez, also filed written
objections with this Court.
(See DE ##38-49, 51-53.)
This Court
heard testimony from every woman in attendance, and some presented
written evidence as well.
The EEOC also put on testimony from its
paralegal, Letrice Chandler, who was in charge of contacting the
class members, mailing them the claims, reviewing claim forms,
company records, interview notes, and statements made by the
employees.
In a nutshell, she identified the individuals who fit
the parameters of the class eligible for distribution.
After due consideration, which is set forth in detail below,
the Court has made the following conclusions.
Guy Parks IS
ENTITLED to a portion of the settlement, and should be included in
the Distribution List.
The other women who appeared at the
fairness hearing today and those that filed written objections ARE
NOT ENTITLED to a portion of the settlement, and should not be
added to the Distribution List.
The EEOC may now move for final
approval
List
of
the
Distribution
(providing
the
different
financial allocations with the inclusion of Guy Parks).
BACKGROUND
The EEOC brought this action to correct alleged unlawful
employment practices on the basis of sex by the Defendant, Polycon.
During the summer of 2010, the parties jointly moved for entry of
a consent decree, and this Court approved. (DE #32.) For purposes
of the consent decree, the class was defined as: “those females who
between September 1, 2005 and March 31, 2010: a) were hired and
placed in packer positions; and/or b) who expressed an interest in
a machine operator position but were denied the opportunity to
apply or compete fairly for such a position.”
2
(DE #32-1, p. 8.)
The EEOC then sent out a Notice of Proposed Settlement which
enclosed a claim form in the fall of 2010.
(EEOC Ex. 2.)
The
notice stated as follows:
You are being notified because you may be eligible
to participate in the settlement. TO PRESERVE YOUR
RIGHTS, YOU MUST FILL OUT AND RETURN A TIMELY CLAIM
FORM. In order to participate, you must meet the
following requirements:
- You are female.
- You were placed into a packer position and would
have been willing to work in a utility position any
time between September 1, 2005, and March 31, 2010.
- You sought a promotion to a machine operator
position or desired a promotion to a machine
operator position any time between September 1,
2005, and March 31, 2010, but did not apply because
someone told you that women would not be promoted
to this position.
- You fill out and return both pages of the Claim
Form enclosed.
- You must keep the EEOC informed of your current
address and phone numbers if you move or they change.
(EEOC Ex. 2.)
The Claim Form provided it “must be postmarked by
November 26, 2010.”
Id.
Pursuant to Section 504 of the Consent Decree entered in this
case, the EEOC filed a list of class members who were eligible for
relief under the Decree, itemizing the amount of damages for each
individual.
This Court ordered that the list, along with the
notice, be served on all class members for whom the EEOC had a
current address.
individual
class
(DE #37.)
member
had
The Court also noted that if any
an
3
objection
to
the
proposed
distribution of funds, the class member should send to the Court,
within
30
days
of
the
Notice,
explaining the grounds for it.
her
Id.
objection,
specifically
The Court cautioned that the
only way to preserve a disagreement with the proposed distribution
would be to submit a letter to the Court as detailed.
The
EEOC
mailed
a
Notice
of
Proposed
Id.
Distribution
and
Distribution List on May 19, 2011, and a second Notice of Proposed
Distribution and the Distribution List was sent on May 26, 2011
(because the EEOC realized that some class members were missing
pages in the correspondence that was sent on May 19, 2011).
(EEOC
Ex. 5.)
Deborah McKnight, Guy Parks, Irene Quiroz, Diane Mitchell,
Veneta Anthony, Guillermina Avalos, Johanna Gomez, Diana Forrester,
Irma Ramirez, Estella Carrera, Ileana Pena, Diantha Whetsell,
Trecia Green, Yolanda Robinson, Bridgett Jones, Sonja Sotiroska,
and Deborah Sams, all filed letters objecting to the proposed
distribution. (DE ##38-49, 51-53.) All of these women except Sonja
Sotiroska
and
Deborah
Sams
attended
the
fairness
hearing.
Additionally, Amaparo Gomez attended the hearing even though she
did not file a written objection with the Court.
After receiving
the objection letters, the Court ordered this fairness hearing, and
ordered the EEOC to serve the order on every person who filed a
letter of objection.
(DE #50.)
The Court notes that all of the
women that attended the fairness hearing were placed under oath and
4
swore to testify to the truth.
The Court did consider the
credibility
of
testimony
conclusions
below.
each
witnesses’
Additionally,
the
in
Court
reaching
the
considered
the
credibility of the EEOC and its paralegal, and notes that the EEOC
has no motivation to lie in this proceeding.
DISCUSSION
The law in this Circuit is that the Court must consider all
objections, but need not state individualized findings with respect
to each of them.
Armstrong v. Board of Sch. Dir., 616 F.2d 305,
326 (7th Cir. 1980). However, the Court’s reasoning must be stated
“with particular clarity.”
Id. at 319.
With this admonition in
mind, the Court will review all objections herein.
The Court may
approve a fair settlement over objections by some or even many
class members, and despite criticism by some named plaintiffs. See
Armstrong v. Board of School Directors, 471 F.Supp. 800, 804 (E.D.
Wis. 1979).
Individuals Whom The EEOC Concedes Should Be Included In The
Distribution
1.
Guy Parks - The EEOC concedes that Parks did not receive
a claim form because they thought she was male.
Indeed,
she fits the definition of the class, and should be
included in the Distribution List.
5
The EEOC admits as
much, and is willing to recalculate the distribution
based upon the inclusion of Parks.
Individuals Who Did Not Send In The Claim Form
1.
Estella Carrera - told the Court that the initial claim
form was sent to her sister’s address (which was the
address she had on file with Polycon), and that her
sister gave her the claim late.
She never completed the
claim form, and she never told Polycon or anyone else
about her new address.
Because Carrera never timely
completed the claim form, and did not notify Polycon or
anyone else about her new address, the Court affirms the
EEOC’s
determination
to
exclude
Carrera
from
the
Distribution List.
2.
Amparo Gomez - told the Court that she did not return the
claim form.
She received several letters, but she did
not send anything back.
Her co-workers told her about
the
She
consent
decree.
did
leave
attorneys, but no one ever called back.
messages
for
Because she
admittedly received, but did not complete the claim form,
and did not follow the form’s instructions, the Court
affirms the EEOC’s determination to exclude Gomez from
the Distribution List.
6
3.
Guillermina Avalos - told the Court she received the
claim form, but never sent it back.
anyone, or make an objection.
definition
of
the
class.
She did not talk to
She misunderstood the
Because
she
admittedly
received, but did not complete the claim form, the Court
affirms the EEOC’s determination to exclude Avalos from
the Distribution List.
4.
Johanna Gomez - told the Court that she received the
claim form and other letters, but never sent anything
back.
She did not make a claim or an objection. She
never spoke with anyone at the EEOC.
Because she
admittedly received, but did not complete the claim form,
the Court affirms the EEOC’s determination to exclude
Gomez from the Distribution List.
5.
Veneta
Anthony
-
although
she
told
the
Court
she
responded to every letter she received from the EEOC, it
is unclear whether she contends that she received and
completed an initial claim form. However, in her written
objection, Anthony does allege that she received a claim
form and returned it. (DE # 48.)
There is evidence that
Anthony responded to a second letter from the EEOC and
she did send the EEOC and this Court letters objecting to
7
the fact that she was not on the Distribution List.
(Def. Ex. 3; EEOC Ex. 7.)
According to the EEOC, her
claim letter was returned undeliverable, but with a
forwarding address, so they mailed the claim form again
to the correct address.
The second time, it was not
returned either completed or undeliverable. According to
the EEOC, it was only after it sent the May 19 and May
26, 2011 notice of distribution letters to the forwarding
address, that they received an objection from Anthony.
(EEOC Ex. 7.)
Anthony claims the Distribution List was
also sent to the wrong address and the only reason she
received it is because the postman knew her. Anthony did
not notify Polycon about her new address.
Because the
EEOC mailed the claim form to the address on file, and
never received a completed claim form, the Court affirms
the EEOC’s determination to exclude Anthony from the
Distribution List.
6.
Diana Forrester - received a claim form, but did not
return it.
She claims she misread the letter, and
believed that the class definition was that she must have
been
hired
objection
between
to
the
2005-2011.
She
Distribution
List.
later
filed
Because
an
she
admittedly received, but did not complete the claim form,
8
the Court affirms the EEOC’s determination to exclude
Forrester from the Distribution List.
7.
Diana Whetsell - she received the claim form, but she
threw it away and did not return it.
She believed
because she was no longer employed by Polycon, she was
not an eligible class member.
objection
attorney
to
the
Whetsell did file an
distribution
Mack-Brown
in
July
list
of
and
2011.
called
EEOC
Because
she
admittedly received, but did not complete the claim form,
the Court affirms the EEOC’s determination to exclude
Whetsell from the Distribution List.
Subsequent to the hearing, a letter was faxed to the Court,
signed by Estella Carrera, Guillermina Avalos, Johanna Gomez, and
Ileana Pena, contending that they did not fill out the claim form
because they speak Spanish, and that the letter should have been
written in both English and Spanish.
(Def. Ex. 7.)
They only
learned about the class lawsuit when the second EEOC letter was
sent out in May of 2011, and one of their co-workers explained the
situation to them.
Id.
While this Court is certainly sympathetic
to the fact that English is not everyone’s first language, the
Court does not believe it is logistically possible or necessary for
the EEOC to analyze all class members, determine their potential
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languages,
and
translate
documents
into
potentially
multiple
languages.
Individuals Who Submitted A Claim, But Are Not Included In The
Distribution List
1.
Irene Quiroz - submitted a claim form, but was not on the
distribution list.
She sent an objection.
According to
EEOC paralegal Chandler, from her review of Quiroz’s
claim, company records, and notes from an interview with
Quiroz, the EEOC determined that Quiroz was not a packer
during the relevant time period, and she did not seek
promotion during that time period.
Quiroz claims that
she was a “packer/printer” during the relevant time
period.
was
In other words, she claims that even though she
labeled
“packer.”
a
“packer/printer,”
she
was
really
a
She submitted a form to the Court dated March
18, 2011 (Def. Ex. 4), which labeled her as a “PP” or
“printer/packer,” but this document was not from the
relevant time period (September 1, 2005 though March 31,
2010).
However, the EEOC submitted a roster dated May
18, 2007, which recorded Quiroz as a printer, and another
roster dated May 30, 2005, also listed her as a printer.
(EEOC Ex. 1.) After the fairness hearing, some additional
information
was
faxed
10
to
the
Court.
Some
of
the
information contained Polycon job instruction sheets that
described the duties of a packer and described the duties
of a printer.
None of this information contains a
definition of a “printer/packer” and it does not support
Quiroz’s argument that the packer and printer jobs were
interchangeable. (Def. Ex. 6.)
The Court finds that it
was proper and reasonable for the EEOC to deny Quiroz
class
status
because
she
does
not
meet
the
class
criteria.
2.
Diane Mitchell - completed her claim form, but was not
included in the Distribution List. She said she believed
the settlement was for all women who worked at Polycon
(regardless of position).
reviewing
records,
According to the EEOC, after
Mitchell’s
claim
form,
and
her
statements, Mitchell was not a packer, and she did not
seek promotion during the relevant time period.
Polycon
roster
dated
Mitchell was a printer.
May
18,
2007,
(EEOC Ex. 1.)
indicates
The
that
The Court finds
that it was proper and reasonable for the EEOC to deny
Mitchell class status because she does not meet the class
criteria.
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3.
Deborah McKnight - never received anything in the mail.
She never filed a claim form, but she did file an
objection.
According to the EEOC, McKnight was an
Inspector in 2005, and then was in management in 2007,
plus there are no records that she ever sought promotion.
McKnight
claims
department.
that
she
assisted
in
the
packing
After the hearing, she submitted a document
entitled “manning per line” and wrote on in that it is
“proof that Q.C. Inspectors Pack. We have to give Breaks
& lunches.”
(Def. Ex. 9.)
However, there is nothing
about this document on its face that shows inspectors
also pack, and McKnight’s name does not seem to appear in
the document.
The Court finds that it was proper and
reasonable for the EEOC to deny McKnight class status
because she does not meet the class criteria.
People Who Claim They Never Received The Claim Form
1.
Irma Ramirez - claims she moved to Charlotte, North
Carolina, and she never received a claim form.
However,
she did receive the EEOC letter dated June 22, 2011,
addressed to her North Carolina address, giving her
notice of this fairness hearing.
(Def. Ex. 2.)
Ramirez
never told Polycon or anyone else her new address.
12
According to the EEOC, they mailed her a claim form on
September 3, 2010, and it was not returned completed or
undeliverable.
Additionally, the EEOC had notes from a
conversation with Ramirez (through her daughter, who
acted as an interpreter), in which she indicated she
moved to North Carolina, but her aunt who lives in the
house where the claim form had been sent had forwarded
the claim form to her.
Because Ramirez admits to
receiving other communications from the EEOC, the Court
finds it suspicious that she did not receive the claim
form.
The Court affirms the EEOC’s determination to
exclude Ramirez from the Distribution List.
2.
Ileana Pena - told the Court she did not get the initial
claim form, but did get the later EEOC notice of the
fairness hearing (dated May 26, 2011).
She claims she
requested a promotion, but she cannot remember the name
of the supervisor, and has no evidence to support her
claim.
Because
Pena
admits
to
receiving
the
EEOC
fairness hearing notice, the Court finds it suspicious
that Pena did not receive the claim form.
The Court
affirms the EEOC’s determination to exclude Pena from the
Distribution List.
13
3.
Yolanda Robinson - testified that she received a claim
form, completed it, and mailed it the same day.
She was
not on the distribution list, so she filed an objection.
According to EEOC paralegal Chandler, Robinson’s claim
form was mailed on September 3, 2010, and on September
24, 2010, was returned as undeliverable.
(EEOC Ex. 2.)
The EEOC obtained her current address through an Accuron
search, and mailed the claim form again on October 12,
2010.
This time, the claim form was not returned
undeliverable,
and
it
was
not
received
completed.
Robinson has no evidence that she returned her claim
form, and she claims the EEOC had an incorrect address.
Because Robinson has no evidence to support her argument
that
she
filed
a
claim
form,
the
Court,
while
sympathetic, affirms the EEOC’s determination to exclude
Robinson from the distribution.
4.
Trecia Green - testified that she never received a claim
form from the EEOC.
She e-mailed EEOC attorney Brown,
and told her she never got a claim form.
(EEOC Ex. 3.)
The EEOC put on testimony that it mailed Green a claim
form on September 3, 2010, and it was not returned
completed
or
undeliverable.
The
EEOC
sent
the
Distribution List to her same address, and Green did file
14
an objection to the list.
Because Green admits to
receiving other communications from the EEOC, and indeed
filed an objection to the distribution list, the Court
finds it suspicious that Green did not receive the claim
form.
The Court affirms the EEOC’s determination to
exclude Green from the Distribution List.
5.
Bridgett Jones - claims she never got a claim form, but
did get the Distribution List (which was mailed to the
same address, see EEOC Ex. 5), and she filed an objection
to the list.
According to the EEOC, they mailed her a
claim form on September 3, 2010, to her address on
Louisiana Place, but it was not returned completed or
undeliverable.
Louisiana Place.
The Distribution List was also sent to
(EEOC Ex. 5.)
Jones sent two letters
to the EEOC, but neither letter says that she did not
receive a claim form.
Jones claims her address was on
Massachusetts Street, not Louisiana Place.
After the
hearing, Jones submitted to the Court a change of address
notice (reflecting the new address on Massachusetts St.),
but that change of address notice was dated April 13,
2011. (Def. Ex. 8.)
The claim form was mailed back in
September 3, 2010, to her previous address (on Louisiana
Place), and because she had not yet filed a change of
15
address form, it is understandable why the EEOC believed
this was her valid address.
The Court finds that it was
proper and reasonable for the EEOC to exclude Jones from
the distribution.
Individuals Who Filed Written Objections, But Did Not Appear At
The Fairness Hearing
Additionally, Sonja Sotiroska filed two written objections (DE
##38, 49), but did not attend the fairness hearing.
According to
one of her coworkers, she was absent because of a medical problem.
Sotiroska’s written objection states that she did not receive the
claim form in this case.
applied
numerous
positions.
times
She worked for Polycon since 2000 and
for
machine
operator
and
maintenance
She feels she was overlooked because she was a woman.
The Court notes that Sotiroska does not allege that she was a
packer during the relevant time frame.
Moreover, the Court notes
that the Polycon Roster dated May 18, 2007, lists Sotiroska as an
inspector. (EEOC Ex. 1.) Therefore, the Court approves the EEOC’s
determination to exclude Sotiroska from the distribution list.
Deborah Sams sent a written objection to the Court claiming
she was a packer and should share in the distribution.
(DE #52.)
The Court notes that her name is on the list of class members (DE
#31), thus the EEOC sent her a claim form.
There is no detail in
her objection establishing when Sams was a packer, and if she ever
wanted a promotion.
Moreover, because she failed to attend the
16
fairness hearing (and thus never testified under oath), the only
information the Court has is her written objection, which in
itself, is insufficient to establish that she: (1) completed a
claim form; and (2) qualifies to share in the distribution.
Consequently,
the
Court
approves
the
EEOC’s
determination
to
exclude Sams from the distribution.
CONCLUSION
Given the relatively small number of individuals who objected
to the Decree and the nature of the objections (which largely
relate to allegedly not receiving the claim form), the Court stands
by its previous decision approving the consent decree.
It appears
to be thoughtful, fair, and a reasonable resolution of a detailed
lawsuit.
The
EEOC
may
now
move
for
final
approval
of
the
Distribution List (providing the different financial allocations
with the inclusion of Guy Parks).
DATED: October 11, 2011
/s/ RUDY LOZANO, Judge
United States District Court
17
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