eeoc v. glatfelter - lawsuit

Case 1:15-cv-01881-YK Document 1 Filed 09/29/15 of 15

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENTOPPORTUNITY Electronically FiledCOMMISSION,

CIVIL ACTION NO.Plaintiff,

v. COMPLAINT AND JURY TRIALDEMAND

P.H. GLATFELTER,

Defendan

NATURE OF THE ACTION

This is an action under Title I of the Americans with Disabilities Act ("the

ADA") of 1990, as amended, and Title I of the Civil Rights Act of 1991, to correct

unlawful employment practices and to provide appropriate relief to Charles A.

Stevens ("Stevens") and a class of similarly aggrieved post-offer applicants and

employees who were subjected to and/or adversely affected by the unlawful

employment practices described below. As alleged with greater particularity in the

Statement of Claims, P.H. Glatfelter ("Glatfelter") voluntarily adopted for

positions involving operation of Powered Industrial Trucks ("PITs") (e.g., forklifts,

lift trucks, and similar industrial vehicles) a physical qualification standard derived

from the Department of Transportation's Federal Motor Carrier Safety

Administration's ("DOT") physical qualifications for drivers of Commercial Motor


Vehicles. Glatfelter's DOT-based qualification standard for positions involving

PITs is overly broad and unlawful and results in adverse employment actions

against individuals with actual or perceived disabilities. In applying its

qualification standard, Glatfelter also requires that post-offer applicants and current

employees seeking to work in the covered positions submit to medical exams and

inquiries, where such exams and inquiries are unlawful as to current employees.

The foregoing conduct, as described in more detail below, is in violation of the

ADA.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 451, 1331, 1337,

1343 and 1345. This action is authorized and instituted pursuant to Section

107(a) of the ADA, 42 U.S.C. 12117(a), which incorporates by reference

Section 706(0(1) and (3) of Title VII of the Civil Rights Act of 1964, as

amended ("Title VII"), 42 U.S.C. 2000e-5(f)(1) and (3); and Section 102 of

the Civil Rights Act of 1991, 42 U.S.C. 1981a.

2. Venue is proper as the employment practices alleged to be unlawful were and

are being committed within the jurisdiction of the United States District Court

for the Middle District of Pennsylvania. See 42 U.S.C. 12117(a),

incorporating 42 U.S.C. 2000e-5(f)(3).

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PARTIES

3. Plaintiff, the United States Equal Employment Opportunity Commission (the

"EEOC" or "Commission"), is the Agency of the United States of America

charged with the administration, interpretation, and enforcement of the ADA

and is expressly authorized to bring this action by Section 107(a) of the ADA,

42 U.S.C. 12117(a), which incorporates by reference Sections 706(f)(1) and

(3) of Title VII, 42 U.S.C. 2000e-5(f)(1) and (3), and Section 102 of the Civil

Rights Act of 1991, 42 U.S.C. 1981a.

4. Glatfelter is a Pennsylvania corporation that has been continuously doing

business in the Commonwealth of Pennsylvania.

5. Glatfelter is a multi-national paper products manufacturer with major domestic

production and manufacturing facilities in Spring Grove, Pennsylvania, and

Chillicothe, Ohio.

6. At all relevant times Glatfelter has continuously employed at least 15 (fifteen)

employees.

7. At all relevant times, Glatfelter has continuously been an employer engaged in

an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C.§

12111(5), and Section 101(7) of the ADA, 42 U.S.C. 12111(7), which

incorporates by reference Section 701(g) and (h) ofTitle VII, 42 U.S.C.

2000e (g) and (h).

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8. At all relevant times Glatfelter has been a covered entity under Section 101(2)

of the ADA, 42 U.S.C. 12111(2).

CONDITIONS PRECEDENT

9. More than thirty days prior to the institution of this lawsuit, Stevens filed a

Charge of Discrimination with the Commission alleging violations of the ADA

by Glatfelter.

10. After investigating Stevens' charge and uncovering additional potential ADA

violations in the course of such investigation, EEOC issued a Letter of

Determination on October 1, 2014, notifying Glatfelter that there was

reasonable cause to believe that it had violated the ADA with respect to Stevens

and further had violated the ADA with respect to a specified class of aggrieved

individuals. EEOC invited Glatfelter to join with the EEOC in informal

methods of conciliation to endeavor to eliminate the discriminatory practices

identified and to provide appropriate relief.

11. The EEOC engaged in communications with Glatfelter to provide Glatfelter the

opportunity to remedy the discriminatory practices described in the Letter of

Determination.

12. The EEOC was unable to secure from Glatfelter a conciliation agreement

acceptable to the Commission.

13. On May 5, 2015, EEOC issued Glatfelter a Notice of Conciliation Failure.

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14. All conditions precedent to the institution of this lawsuit have been fulfilled.

STATEMENT OF CLAIMS

15. The DOT has promulgated regulations governing the physical qualification

standard for drivers of Commercial Motor Vehicles. The DOT's physical

qualification standard is promulgated at 49 C.F.R. 391.41 et seq. (hereinafter

"DOT physical qualification standard").

16. The DOT physical qualification standard applies to drivers ofvehicles that are

used on a highway in interstate commerce and meet the definition of a

Commercial Motor Vehicle, as set forth in the regulations.

17. Glatfelter employees do not operate PITs on a highway in interstate commerce.

18. PITs are not Commercial Motor Vehicles under DOT regulations.

19. Operators of PITs are not subject by law to the DOT physical qualification

standard.

20. Glatfelter's paper product manufacturing facilities in both Spring Grove and

Chillicothe employ individuals in positions requiring operation of PITs.

21. At its Spring Grove facility, Glatfelter has adopted a physical qualification

standard applicable to any position involving operation of PITs that copies the

DOT's physical qualification standard.

22. Glatfelter has never conducted any validation studies or undertaken any other

efforts to evaluate or establish that its qualification standard, copying the DOT


physical qualification standard for Commercial Motor Vehicles, is an accurate

and predictive measure of ability to safely operate PITs in its facility or that

such standard is not broader or more restrictive than necessary.

23. Though Glatfelter applies the DOT physical qualification standard to positions

involving operation of PITs, Glatfelter does not similarly apply the DOT

Exemption Programs, which permit drivers of Commercial Motor Vehicles to

be licensed, even if they fail to meet the generally enumerated DOT physical

qualification standard, based upon individualized analysis of the drivers'

particular medical status and condition and his/her past driving performance

and safety.

24. Operators of PITs at Glatfelter's Chillicothe production facility are not required

to meet any physical qualification standard, and are instead subject to

knowledge and operation based standards.

25. At its Spring Grove facility, Glatfelter requires all post-offer applicants and

current employees seeking employment in positions involving operation of PITs

to undergo medical exams/inquiries to determine whether they satisfy

Glatfelter's physical qualification standard.

26. At its Spring Grove facility, if the results of a post-offer applicant's or current

employee's medical exam/inquiry indicate that the applicant or employee does

not meet its physical qualification standard, Glatfelter denies the otherwise

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31. Stevens' monocular vision substantially limits him in major life activities

including seeing and/or in major bodily functions, including ocular functions, as

compared to most people in the general population.

32. At all relevant times Stevens has suffered from an actual disability as defined

by the ADA.

33. At all relevant times Stevens has had a record of disability as defined by the

ADA.

34. In refusing Stevens employment, Glatfelter regarded Stevens as disabled as

defined by the ADA, including by subjecting him to an employment action

because of his actual or perceived physical impairment.

35. Stevens has significant experience operating PITs, and, notwithstanding his

monocular vision, has safely and effectively operated PITs as part of his job

duties for employers other than Glatfelter, both before and after his application

with Glatfelter.

36. On or about February 19, 2010, Glatfelter offered Stevens conditional

employment as a Trainee at its Spring Grove facility, subject to successful

completion of its medical examination and satisfaction of its physical

qualification standard.


37. On or about March 4, 2010, Stevens completed Glatfelter's pre-employment

physical exam form and underwent a medical examination, through which

Glatfelter confirmed Stevens' disability and record of prior treatment for same.

38. Glatfelter concluded that due to his disability Stevens did not satisfy

Glatfelter's physical qualification standard for operation of PITs, a job duty

allegedly required in the Trainee position, and therefore could not be employed.

39. On or about March 4, 2010, Glatfelter notified Stevens that it was rescinding

his conditional offer of employment.

40. Glatfelter never conducted any individualized analysis of Stevens' actual

ability to safely operate PITs, including through a driving test, nor did it

consider accommodations that, if needed, would permit him to do so.

Count I.

41. EEOC hereby incorporates paragraphs 15 through 40.

42. Since at least May 2009, and on a continuing basis, Glatfelter has engaged in

unlawful employment practices at its Spring Grove facility against Stevens and

similarly situated post-offer applicants and employees who are otherwise

qualified individuals with actual and/or perceived disabilities and were

subjected to Glatfelter's physical qualification standard for positions involving

PITs in violation of Sections 102(a), (b)(5), (b)(6) and Section 103(c); 42

9


U.S.C. 12112(a), (b)(5), (b)(6); §12113(c). The unlawful employment

practices include the following:

a. discriminating with respect to hiring, transfer, advancement and other

terms, conditions and privileges of employment on the basis of disability;

b. using a physical qualification standard that screens out or tends to screen

out individuals with disabilities where the qualification standard cannot

be shown to be job-related for the position in question and consistent

with business necessity;

c. using a physical qualification standard with criteria based on an

individual's uncorrected vision where such criteria cannot be shown to be

job-related for the position in question and consistent with business

necessity; and

d. assuming Glatfelter's physical qualification standard is otherwise a

lawful qualification standard, not conducting individualized inquiries of

individuals who fail to meet the standard to determine whether they in

fact cannot safely operate PITs and/or not considering or providing

accommodation(s) that, if needed, would enable the individual to safely

operate PITs.

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43.The unlawful employment practices described in Count I resulted in loss of

employment opportunities and/or adverse tangible employment actions and/or

harms against aggrieved individuals.

44.The unlawful employment practices contained in Count I caused aggrieved

individuals emotional and mental anguish, pain and suffering, stress, and

humiliation and frustration.

45.The unlawful employment practices contained in Count I were done with

malice or reckless disregard to the federally protected rights of the aggrieved

individuals.

Count II.

46. EEOC hereby incorporates paragraphs 15 through 40.

47. Since at least May 2009, and on a continuing basis, Glatfelter has engaged in

unlawful employment practices at its Spring Grove facility against current

employees who were subjected to medical exams and/or inquiries as part of the

administration of the physical qualification standard for positions involving

PITs in violation of Section 102(d)(4)(A), 42 U.S.C. 12112(d)(4)(A). The

unlawful employment practices include the following:

a. requiring employees seeking employment in any position involving

operation of PITs to submit to a medical exam and/or inquiry that cannot

be shown to be job-related and consistent with business necessity.

11


48.The unlawful employment practices contained in Count II were done with

malice or reckless disregard to the federally protected rights of the aggrieved

individuals.

PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a permanent injunction enjoining Glatfelter, its officers, successors,

assigns, and all persons in active concert or participation with them, from engaging

in disability discrimination, including, but not limited to: utilizing overly broad and

unlawful physical qualification standards; making employment decisions on the

basis of disability; failing to conduct individualized inquiries and consider

reasonable accommodations, if necessary; and any other employment practice that

discriminates on the basis of disability in violation of the ADA.

B. Grant a permanent injunction enjoining Glatfelter, its officers, successors,

assigns, and all persons in active concert or participation with them, from engaging

in disability discrimination, including, by subjecting current employees to unlawful

medical exams and/or inquiries in violation of the ADA.

C. Order Glatfelter to institute and carry out policies, practices, and programs

that provide equal employment opportunities to qualified individuals with

disabilities, that prohibit the use of unlawful physical qualification standards, that

prohibit Glatfelter from subjecting employees to unlawful medical exams and/or

12


inquiries, and that eradicate the effects of its past and present unlawful

employment practices.

D. Order Glatfelter to make Stevens and the class of similarly situated post-

offer applicants and employees described in Count I whole by providing

appropriate back pay, inclusive of all forms of compensation and lost benefits, with

prejudgment interest, in amounts to be determined at trial, and all other affirmative

relief necessary to eradicate the effects of its unlawful employment practices,

including but not limited to instatement, promotion and/or transfer, or front pay in

lieu thereof.

E. Order Glatfelter to make Stevens and the class of similarly situated post-


compensation for past and future pecuniary losses resulting from the unlawful

employment practices described above, in amounts to be determined at trial.

F. Order Glatfelter to make Stevens and the class of similarly situated post-


compensation for past and future non-pecuniary losses resulting from the unlawful

practices described above, including emotional pain, suffering, inconvenience,

mental anguish, loss of enjoyment of life, and other non-pecuniary losses, in

amounts to be determined at trial.

G. Order Glatfelter to pay Stevens and the class of similarly situated post-offer

13


applicants and employees described in Count I punitive damages for the malicious

and reckless conduct described above, in amounts to be determined at trial.

H. Grant such further relief as the Court deems necessary and proper in the

public interest.

I. Award the Commission its costs of this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by its

Complaint.

FOR: EEOC

P. DAVID LOPEZGENERAL COUNSEL

JAMES L. LEEDEPUTY GENERAL COUNSEL

GWENDOLYN YOUNG REAMSASSOCIATE GENERAL COUNSEL

DEBRA M. LAWRENCE

Regional Attorney

MARIA MOROCCO

Supervisory Trial Attorney

THOMAS RETHAGE (PA liZr 203524)Senior Trial AttorneyEEOC Philadelphia District Office801 Market Street, Suite 1300

Philadelphia, PA 19107

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Phone: 215-440-2683Fax: 215-440-2848Email: [email protected] Bar No. 96035Petitionfor Special Admission Forthcoming

/s/ Tanisha R. WilburnTANISHA R. WILBURN (NC Bar 38589)Trial AttorneyEEOC— Washington Field Office131 M Street, N.E. Suite 4NWO2F

Washington, D.C. 20507Phone: 202-419-0712Fax: 202-419-0739Email: [email protected] Bar No. 19271Petitionfor Special Admission Forthcoming

ATTORNEYS FOR PLAINTIFF

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FOR OFFICE USE ON Y2LZ4127/.5.

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Case 1:15-cv-01881-YK Document 1-1 Filed 09/29/15 Page 1 of 1

JS 44 (Rev. 12112) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use ofthe Clerk ofCourt for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTSU.S. Equal Employment Opportunity Commission P.H. Glatfelter

(b) County of Residence ofFirst Listed Plaintiff County of Residence ofFirst Listed Defendant YOTk County. PA(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.

(C) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (IfKnown)Tom Rethage, Senior Trial Attorney801 Market St., Suite 1300, Philadelphia, PA 19107215-440-2683

II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Boxfor Plaintiff(For Diversiry Cases Only) and One Boxfor Defendant)tg I U.S. Government CI 3 Federal Question PTF DEF PTF DEF

Plaintiff (U.S. Government Not a Party) Citizen ofThis State CI 1 0 I Incorporated or Principal Place CI 4 0 4of Business In This State

0 2 U.S. Government 0 4 Diversity Citizen ofAnother State 0 2 0 2 Incorporated andPrincipal Place 0 5 0 5Defendant (Indicate Citizenship ofParties in Item III) of Business In Another State

Citizen or Subject ofa 0 3 0 3 Foreign Nation 0 6 0 6

IV. NATURE OF SUIT (Place an "X" in One Box Onlv)

O 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Actin 120 Marine 0 310 Airplane 0 365 Personal Injury ofProperty 21 USC 881 C1 423 Withdrawal 0 400 State ReapportionmentO 130 Miller Act 0 315 Airplane Product Product Liability 0 690 Other 28 USC 157 CI 410 AntitrustO 140 Negotiable Instrument Liability 0 367 Health Care/ 0 430 Banks and BankingO 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical 7 PkOPEKTYRIGHTS, 0 450 Commerce

& Enforcement ofludgment Slander Personal Injury 0 820 Copyrights 0 460 DeportationO 151 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent CI 470 Racketeer Influenced andO 152 Recovery of Defaulted Liability 0 368 Asbestos Personal 0 840 Trademark Corrupt Organizations

Student Loans 0 340 Marine Injury Product 0 480 Consumer Credit(Excludes Veterans) 0 345 Marine Product Liability LABOR SOCIAL SECURITY 0 490 Cable/Sat TV

O 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 HIA (1395ff) CI 850 Securities/Commodities/ofVeteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) Exchange

O 160 Stockholders' Suits 0 355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Management 0 863 DIWC/DIWW (405(g)) 0 890 Other Statutory ActionsO 190 Other Contract Product Liability 0 380 Other Personal Relations 0 864 SS1D Title XVI 0 891 Agricultural ActsO 195 Contract Product Liability 0 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) CI 893 Environmental MattersO 196 Franchise Injury 0 385 Property Damage 0 751 Family and Medical 0 895 Freedom of Information

0 362 Personal Injury Product Liability Leave Act ActMedical Malpractice 0 790 Other Labor Litigation 0 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 0 791 Employee Retirement FEDERAL TAX SUITS 0 899 Administrative Procedure0 210 Land Condemnation 0 440 Other Civil Rights Habeas Corpus: Income Security Act 0 870 Taxes (U.S. Plaintiff Act/Review or Appeal of0 220 Foreclosure 0 441 Voting CI 463 Alien Detainee or Defendant) Agency Decision0 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate 0 871 IRS—Third Party 0 950 Constitutionality of0 240 Torts to Land 0 443 Housing/ Sentence 26 USC 7609 State Statutes0 245 Tort Product Liability Accommodations 0 530 General0 290 All Other Real Property Ig 445 Amer. w/Disabilities 0 535 Death Penalty IMMIGRATION

Employment Other: b 462 Naturalization Application0 446 Amer. w/Disabilities 0 540 Mandamus & Other 0 465 Other Immigration

Other 0 550 Civil Rights Actions0 448 Education 0 555 Prison Condition

0 560 Civil DetaineeConditions ofConfinement

V. ORIGIN (Place an "X" In One Box Only))31 I Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict

Proceeding State Court Appellate Court Reopened Another District Litigation

Cite the U.S. Civil Statute under which you are filing (Do not citejurisdictionalstatutes unless diversity):ADA 42 USC 12101, et. seq.VI. CAUSE OF ACTION Brief description ofcause:

Disability discrimination including, inter alia: qualification standards, failure to accommodate, exams/inquiriesVII. REQUESTED IN El CHECK IF THIS IS A CLASS ACTION J3EIVIAND S CHECK YES only if demanded in complaint:

COMPLAINT: UNDER RULE 23, F.R.Cv.P. Oe7e4,114c., ç7& 7r/a/ JURY DEMAND: Yes 0 No

VIII. RELATED CASE(S)IF ANY (See instructions):

JUDGE DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD29-

RECEIPT AMOUNT APPLYING IFP JUDGE MAG. JUDGE

eeoc v. glatfelter - lawsuit

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