Smith, Judge Walter S.

English

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Cornell University ILR School 
DigitalCommons@ILR 
ADAAA Case Repository Labor and Employment Law Program 
2-9-2005 
EEOC v. Jack of All Trades Personnel Services, Inc. 
Judge Walter S. Smith 
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EEOC v. Jack of All Trades Personnel Services, Inc. 
Keywords 
EEOC, Jack of All Trades Personnel Services Inc., WA:04-CV-157, Consent Decree, Disparate Treatment, 
Unlawful Medical Exam, Hiring, Service, Employment Law, ADAAA 
This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/adaaa/308 
Case 6:04-cv-00157-WSSM
l 57J
Document 9 Filed 02/09/2005 Page 1 of 11
FILED
IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 
WACO DIVISION
FEB 0 0 2005
CLERK, U.S. DISTRICT COURT 
WESTERN OlfflR IQ T OF TEXA?
^ V __ __
r i ' p r f i ' f v  r - i r t '
EQUAL EMPLOYMENT OPPORTUNITY )
COMMISSION, )
) CIVIL ACTION NO.
Plaintiff, )
) WA:04-CV-157
v. )
)
JACK OF ALL TRADES PERSONNEL )
SERVICES, INC., )
)
Defendant. )
_______________________________________________________________________________________)
CONSENT DECREE
THIS CONSENT DECREE is made and entered into by and between the Plaintiff, Equal 
Employment Opportunity Commission (“EEOC”), and the Defendant, Jack o f All Trades 
Personnel Services, Inc. (“Defendant” or “JOAT”), in the United States District Court for the 
Western District o f Texas, Waco Division, with regard to the EEOC’s Complaint, filed on 
February 17, 2004 (“the Complaint”), in Civil Action No. WA:04-CV-157. This Complaint was 
based upon Charge o f Discrimination filed by Charging Party Marci Cudmore against Defendant 
employer. .
The above-referenced Complaint alleged that the Defendant JOAT violated Title I of the 
Americans with Disabilities Act o f 1990 and Title I o f the Civil Rights Act o f 1991, when it 
engaged in a pattern and practice o f discriminating against Marci Cudmore and a class of 
similarly-situated aggrieved individuals by subjecting them to unlawful pre-employment medical
CONSENT DECREE 1
Case 6:04-cv-00157-WSSM Document 9 Filed 02/09/2005 Page 2 of 11
inquiries and examinations and by unlawfully relying upon the results thereof as a basis to deny 
hire.
The EEOC and the Defendant agree to compromise and settle the differences embodied in 
the Complaint, and intend that the terms and conditions o f the compromise and settlement be set 
forth in this Consent Decree (“Consent Decree”). It is understood and agreed that this Consent 
Decree is in compromise o f disputed claims, and that this Consent Decree shall not in any way be 
construed as an admission by Defendant Jack of All Trades Personnel Services. Inc. o f a violation 
o f any federal, state, or local statute, law or regulation, or a violation o f any right o f the aggrieved 
individuals or any other person.
NOW, THEREFORE, in consideration o f the mutual promises and agreements set forth 
herein, the sufficiency o f which is hereby acknowledged, the parties agree as follows, the Court 
finds appropriate and therefore, it is ORDERED, ADJUDGED AND DECREED that:
1. This Consent Decree resolves all issues raised in EEOC Charge No. 310 AO 8105. 
EEOC Charge No. 310 AO 8052 has been administratively closed. This Decree further resolves 
all issues in the Complaint filed by the EEOC in this civil action. The EEOC waives further claims 
and/or litigation on all issues raised in the above-referenced Charge and Complaint. The EEOC 
does not waive processing or litigating charges other than the above-referenced Charge.
2. Defendant agrees not to discriminate on the basis o f disability with respect to 
recruitment, hiring, termination, or any other employment action, and Defendant further agrees 
not to retaliate in any way against any person because o f opposition to any practice declared 
unlawful under the ADA or because of the filing o f a charge, giving testimony, or assisting or 
participating in any manner in any investigation, proceeding or hearing.
CONSENT DECREE 2
Case 6:04-cv-00157-WSSM
l 57-
Document 9 Filed 02/09/2005 Page 3 of 11
3. Defendant agrees that its hiring and medical examination processes will comply 
with the provisions o f the Americans with Disabilities Act. For purposes o f this Consent Decree, 
an “offer” o f employment occurs when the staffing firm or temporary employment agency worker 
is given an assignment for a particular date with a particular client. The “offer” is typically made 
after the staffing firm or temporary employment agency has obtained and evaluated all non­
medical information reasonably necessary to its hiring and placement decision.
a. Defendant agrees that it will not make disability-related inquiries of applicants or 
require applicants to submit to a medical examination prior to being offered an 
assignment.
b. Defendant agrees that all disability-related inquiries or medical examinations shall 
be done or conducted: (1) as part o f a non-discriminatory practice, applied to all 
employees or to all employees in a specific group that is not based on disability; or 
(2) if necessary, to determine whether an employee can perform the essential 
functions o f a specific job with or without a reasonable accommodation.
Defendant agrees that disability-related inquiries and medical examinations will not 
be made or conducted o f persons assigned to clerical positions, unless the job 
description for the specific clerical position has a lifting or other physical 
requirement.
c. Defendant agrees that all medical examinations, which are to be conducted only 
after the employee has been offered an assignment, will be performed by a qualified 
professional.
d. Defendant agrees that before an offer is withdrawn, based solely on the results o f a
CONSENT DECREE 3
post-offer medical examination, it will ascertain that the exclusionary requirement 
is job-related and consistent with business necessity, and that no reasonable 
accommodation exists that would enable the employee to meet the assignment's 
requirements, without posing an undue hardship.
4. Defendant also agrees to comply with Section 102(d)(3)(B) o f the Americans with 
Disabilities Act, which requires that information obtained regarding the medical condition or 
history o f the employee should be maintained on separate forms and in separate medical files and 
treated as confidential medical information.
5. Defendant agrees that during the application process, it will provide a reasonable 
accommodation to any applicant with a disability who requests one unless to do so would impose 
an undue hardship.
6. Defendant agrees that during the year 2005, one or more o f its managers shall 
attend a national training conference (such as Job Accommodation Network's Annual Conference 
or National ADA Symposium & Expo) that specifically includes training and information relating 
to employment o f persons with disabilities and the Americans With Disabilities Act.
7. Defendant agrees to conduct annual training for those employees working in the 
JO AT office, including supervisors, managers and hourly workers, advising them o f the 
requirements and prohibitions o f the Americans with Disabilities Act. Specifically, the training 
will inform the employees o f the proper procedure by which to request a reasonable 
accommodation, and will detail Defendant’s obligation to provide the requested reasonable 
accommodation, providing an explanation and examples o f undue hardship. The training will also 
inform the employees o f the complaint procedure for those individuals who believe they have
Case 6:04-cv-00157-WSSM Document 9 Filed 02/09/2005 Page 4 of 11
CONSENT DECREE 4
Case 6:04-cv-00157-WSSM Document 9 Filed 02/09/2005 Page 5 of 117
experienced discrimination because of their disability. Further, the training will advise employees, 
including supervisors and managers, of the consequences o f violating the ADA. The training shall 
be at least two hours in duration. No less than 10 days before the training is conducted.
Defendant agrees to give written notice to the EEOC as to the date and location of the training, 
the name of the person providing the training and the substance o f the training.
8. Defendant agrees to forward to the EEOC copies o f all complaints alleging 
discrimination on the basis o f disability, either against Defendant or any o f Defendant’s client- 
employers, which are made by JOAT employees and received by JOAT, including a report 
evidencing Defendant's investigation of the complaints and the remedial action taken, if any.
9. Defendant agrees to provide the EEOC with a list o f all persons rejected for 
placement in any temporary position based on a medical screening or examination but not 
including a drug test, during the one-year period from the date this Consent Decree is signed by 
the Judge. For each person identified, Defendant agrees to provide: (a) the person’s application;
(b) all JOAT documents relating to the person’s application, interview or hiring process at JOAT;
(c) a list o f all positions for which each person was rejected; and (d) any and all reasons why the 
person was rejected for hire for each position.
10. Defendant authorizes the EEOC to review any and all employment application 
materials received within two years from the date o f this Consent Decree.
11. Within ten (10) days after the date o f this Consent Decree, Defendant shall post a 
notice, attached as Attachment A in prominent and conspicuous locations throughout its facility, 
informing its employees and applicants o f their employment rights pursuant to the Americans with 
Disabilities Act. Defendant will thereafter report to the Commission that it has complied with
CONSENT DECREE 5
Case 6:04-cv-001
this requirement within fourteen (14) days after posting the notice. The notice shall also inform 
employees where to report if a reasonable accommodation is needed, and where to report 
violations o f the Americans with Disabilities Act, the name of the designated company official to 
whom they should report said requests for reasonable accommodation and violations, along with 
the address and telephone number of the Dallas District Office o f the EEOC. The notice shall 
remain posted for two years from the date o f this Consent Decree.
12. Defendant agrees to distribute a copy of the Notice within 60 days o f the date of 
this Consent Decree to each o f the temporary employees on its payroll, as an attachment to the 
employees’ paycheck. Defendant further agrees to include the Notice as part of its application 
paperwork packet for both new applicants and those employees returning to update their 
application information for two years from the date o f this Consent Decree.
13. Defendant agrees to pay the gross sum of $ 154,224.00 to resolve all claims for all 
damages. From this gross payment, Marci Cudmore and each o f the identified aggrieved 
individual will receive $ 8568.00, of which $1125.60 will be considered as back pay damages and 
$7442.40 will be considered as compensatory damages. Within twenty-one (21) days o f the entry 
o f this Consent Decree, Marci Cudmore and each of the identified aggrieved individuals will 
submit a current IRS Form W-4 to Defendant. Within twenty-one (21) days o f Defendant’s 
receipt o f the completed W-4 Form. Defendant will issue a check, made payable to each 
aggrieved individual, in the above-referenced amounts, less required withholdings.
14. The payments referenced above, shall be made by check with a copy o f the 
checks sent to EEOC attorney Ronetta J. Francis, 207 S. Houston Street, Third Floor, Dallas, 
Texas 75202.
WSSM Document 9 Filed 02/09/2005 Page 6 of 11
CONSENT DECREE 6
Case 6:04-cv-00157-WSSM Document 9 Filed 02/09/2005 Page 7 of 11
15. All reports to the EEOC required by this Decree shall be sent to Ronetta J. 
Francis, Senior Trial Attorney. EEOC, 207 S. Houston, Third Floor, Dallas. Texas 75202.
16. If Defendant fails to tender payment or otherwise fails to timely comply with the 
terms above, Defendant shall:
17. Neither the EEOC, nor the Defendant shall contest the validity of this Consent 
Decree nor the jurisdiction o f the federal district court to enforce this Consent Decree and its 
terms or the right o f either party to the Consent Decree to bring an enforcement action upon 
breach o f any term o f this Consent Decree by either such party. Nothing in this Decree shall be 
construed to preclude the EEOC from enforcing this Decree in the event that Defendant Jack of 
All Trades Personnel Services, Inc. fails to perform the promises and representations contained 
herein. The EEOC shall be authorized to seek compliance with the Consent Decree through civil 
action in the United States District Court.
18. The term of this Decree shall be for three (3) years.
19. The parties to this Consent Decree agree to bear their own attorney’s fees and 
costs associated with the above-referenced Complaint.
a. Pay interest at the rate calculated pursuant to 26 U.S.C. Section 6621(b)
on any untimely or unpaid amounts from date o f non-compliance; and
b. Bear any additional costs incurred by the EEOC caused by the non-
compliance or delay o f the Defendant.
SO ORDERED, ADJUDGED AND DECREED this j  '
2005.
U.S. DISTRICT COURT JUDGE
CONSENT DECREE 7
Case 6:04-cv-00157-WSSM Document 9 Filed 02/09/2005
AGREED AS TO FORM AND SUBSTANCE:
day of 2005.
FOR THE PLAINTIFF:
C^ UfkP— r^r Md
ROBERT A. CANINO 
Regional Attorney 
Oklahoma State Bar No. 011782
SUZANNE M. ANDERSON 
Supervisory Trial Attorney 
Texas Bar No. 14009470
Virginia Bar No. 39886
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Dallas District Office
207 South Houston Street Third Floor
Dallas, Texas 75202
Tel No. (214) 253-2746
Fax No. (214) 253-2749
Page 8 of 11
i
CONSENT DECREE 8
Case 6:04-cv-00 157-WSSM Document 9 Filed 02/09/2005 Page 9 of 11
FOR THE DEFENDANTS:
Texas State Bar No. 008804400 
John B. Brown
Texas State Bar No. 00793412 
GARDERE WYNNE SEWELL, L.L.P. 
1601 Elm Street, Suite 3000 
Dallas, Texas 75201 
(214) 999-3000
09249300
NAMAN, HOWELL, SMITH & LEE
P.O. Box 1470
Waco, Texas 76703-4100
(254) 755-4100
(254) 754-6331 (FAX)
CONSENT DECREE 9
Case 6:04-cv-00157-WSSM Document 9 Filed 02/09/2005 Page 10 of 11 
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Dallas District Office 207 S. Houston Street, 3r<1 Floor
Dallas, TX 75202-4726 
(214)253-2700 
TTY (214) 253-2710 
FAX (214) 253-2720 
EEOC Website: www.eeoc.gov
NOTICE OF EMPLOYEE RIGHTS UNDER 
THE AMERICANS WITH DISABILITIES ACT
This notice is being posted pursuant to a Consent Decree entered into between Jack of All 
Trades Personnel Services, Inc. (“JOAT”), and the Equal Employment Opportunity Commission, 
based upon a Charge o f Discrimination alleging disability discrimination under the Americans with 
Disabilities Act (“ADA”).
An employer cannot discriminate against qualified applicants and employees on the basis of 
disability. Under the Americans With Disabilities Act, an individual with a disability is a person who 
has (a) a physical or mental impairment that substantially limits one or more major life activities; (b) 
a record o f an impairment or (c) is regarded as having such an impairment. The ADA also prohibits 
discrimination against a person because o f their association or relationship with an individual with a 
known disability. This prohibition covers all aspects o f the employment process, including:
promotion
medical examinations 
layolf/recall 
termination 
compensation 
leave
JOAT states that it will comply with the Americans with Disabilities Act by not making 
disability-related inquiries o f applicants or requiring applicants to submit to a medical examination 
prior to being offered an assignment. JOAT represents that all disability-related inquiries or medical 
examinations, will be conducted only after the employee has been offered an assignment. JOAT 
agrees that the disability-related inquiries or medical examinations must be administered to all entering 
employees in the same job category.
• JOAT agrees that all medical examinations, conducted after the employee has been 
offered an assignment, must be conducted by a qualified professional.
• JOAT agrees that before an offer o f employment is withdrawn, based solely on the 
results o f a post-offer medical examination, it will ascertain that the exclusionary 
requirement is job-related and consistent with business necessity, and that no 
reasonable accommodation exists that would enable the employee to meet the 
assignment’s requirements, without posing an undue hardship.
Further, under the ADA, an employer must make a reasonable accommodation to the known
application
testing
hiring
assignments 
evaluation 
disciplinary actions
ATTACHMENT A
Filed 02/09/2005 Page 11 of 11Case 6:04-cv-001 57-WSSM Document 9
physical or mental limitations o f a qualified applicant or employee with a disability unless it can show 
that the accommodation would cause an undue hardship on the operation o f its business. Some 
examples o f reasonable accommodation include:
• making existing facilities used by employees readily accessible to, and usable by, an 
individual with a disability;
• job restructuring;
• modifying work schedules;
• reassignment to a vacant position;
• acquiring or modifying equipment or devices; or
• providing qualified readers or sign language interpreters
Each supervisor has a responsibility to maintain a workplace free o f discrimination. This duty 
includes notifying all employees o f the JOAT EEO policy and assuring them that they are not to 
endure unequal treatment because o f their race, color, sex, national origin, religion, age or disability, 
and reporting incidents involving discrimination. Retaliation against individuals who raise concerns 
o f discrimination is strictly prohibited.
An employee has the right, and is encouraged to exercise that right to report allegations of 
discrimination in the workplace. An employee may do so by notifying either Owner/Proprietor Helen 
Underwood or the Account Manager Joyce Smith at (7 5 *1) Supervisors and managers
who are informed o f a complaint or allegation o f discrimination must immediately notify either 
Owner/Proprietor Helen Underwood or the Account Manager Joyce Smith.
Any report o f discrimination will be thoroughly investigated, with appropriate disciplinary 
action, up to and including termination, be taken against any person(s) found to have engaged in such 
conduct.
An employee, either alternatively or in addition to reporting such an allegation to JOAT 
officials, may contact the Equal Employment Opportunity Commission for the purposes o f filing a 
charge o f employment discrimination. The address and telephone number o f the nearest EEOC office 
is 207 South Houston Street, Third Floor, Dallas, Texas 75202; (214) 253-2700.
3- O 5 Ohtuyijt. JL ry Jcd 'l________
Date Jack! o f All Trades Personnel Services, Inc.


EEOC v. Jack of All Trades Personnel Services, Inc.

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EEOC v. Jack of All Trades Personnel Services, Inc.

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