Jewel-Osco to be Sanctioned for Being in Contempt of Consent Decree in Reasonable Accommodations Case

Monday, July 21, 2014

Federal Magistrate Judge Michael Mason has entered a Report and Recom­mend­ation, in the form of a court order, recommending that the District Court in Chicago find Supervalu / Jewel-Osco in contempt of court and sanction it for multiple violations of the consent decree previ­ously entered by District Judge Ronald A. Guzman to resolve the EEOC's Americans with Disabilities Act (ADA) lawsuit against the supermarket giant.

After a three-day hearing in March and April 2014 and briefing by the parties, the court found on July 15 that "the evidence is overwhelming that the company did not do what it was supposed to do under the Decree." The court opined that Jewel-Osco was in contempt of court when it violated the pro­vision of the consent decree enjoining the company from discriminating "on the basis of disability by not providing reasonable accommodation to persons desiring to return to work from a disability leave." The EEOC contended that two employees who were fired and one who was forced to resign while on unpaid leave could easily have been returned to work at Jewel-Osco with simple minimal-cost accommodations.

In his order, Magistrate Judge Mason was sharply critical of Jewel-Osco's position before the court. "Jewel also argues," he wrote in his decision, "that, during the hearing the 'EEOC failed to present evidence that any of the claimants was able to return to work with or without a reasonable accommodation.' This and other assertions leave the Court wondering whether Jewel may have attended a different hearing than the one this Court presided over."  In assessing the relief to be compelled from Jewel-Osco, Mason went on to say that the court had determined "that clear and convincing evidence shows that the company violated" the consent decree, and that "based on the evidence adduced at the hearing and the attitude such evidence reflects on the part of the company, the Court finds that a coercive sanction is also appropriate."

As a sanction for contempt, the Magistrate Judge Mason recommended that Jewel-Osco pay a total of $82,000 in back pay to three former employees who were denied accommodation. In addition, the magistrate judge recommended that the court extend the consent decree by one year and order that a special master, paid by the company, review the decisions made by the company and its medical accommodations team to ensure compliance with the consent decree. He also found that the EEOC should be reimbursed for its reasonable fees and costs incurred in bringing the contempt motion.

The court found that "regardless of how the company's rigorous process was supposed to work - there was little or no effort to come up with any sort of modification or accommodation that would allow the employee to return to work." The court found that, though the company's training materials indicated that the company would look for available jobs in other stores as a reasonable accommoda­tion, neither the medical accommodations team nor anyone else at Jewel-Osco made any such search. The court also noted that company did not consider assistive devices and the "witnesses who testified for the company were very dismissive of the notion of allowing any assistive devices to be brought into the store."

Jewel-Osco has been under the terms of a three-year consent decree, approved and entered by Judge Guzman on Jan. 14, 2011. That decree resolved the EEOC's lawsuit in U.S. District Court for the Northern District of Illinois (EEOC v. Supervalu, 09-cv-5637).  The lawsuit, which was originally filed Sept. 4, 2009, alleged that Jewel-Osco had violated the ADA by failing to accommodate emp­loyees who wanted to return to work from disability leave. Under the terms of the decree, in addition to reforming its ADA policies and practice, Jewel-Osco had to pay $3.2 million to former employees.

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