$15K Awarded EEOC in Settlement of ADA Suit Over Denial of Transfer for Disabled Employee

Evidently this hospital in Indiana lost sight of the requirement under federal law to consider a transfer for an employee whose disability keeps her from doing her current job.

St. Vincent Hospital and Health Care Center, Inc. will pay $15,000 and furnish other relief to resolve a lawsuit disability discrimination filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday. The EEOC had charged that the hospital violated federal law when it failed to provide its employee with a reasonable accommodation of a transfer to a vacant position for which she was qualified.

According to the EEOC’s complaint, when St. Vincent learned that Latoya Moore’s lifting restrictions caused by her disabilities were indefinite, St. Vincent required Moore to take leave at reduced pay, even though she wanted to continue working. Instead of transferring Moore to vacant positions she was qualified for and could perform, St. Vincent fired her, the EEOC charged.

The EEOC brought the suit under the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against an individual because of disabilities. Under the ADA, it is illegal for an employer to refuse to provide a reasonable accommodation to a qualified individual with a disability unless the employer can demonstrate the accommodation would impose an undue hardship. Transfer to a vacant position for which the employee is qualified can be a reasonable accommodation. The case (EEOC v. St. Vincent Hospital and Health Care Center, Inc., Civil Action No. 1:17-cv-3426-RLY-DML) was filed in U.S. District Court for the Southern District of Indiana, Indianapolis Division on Sept. 26, 2017.

Under a consent decree settling the suit, entered by the court on May 24, St. Vincent will pay Moore $15,000 in lost wages and compensatory damages. In the future, the hospital will be required to notify employees whose disabilities prevent them from performing the essential functions of their existing positions that reassignment to a vacant position for which they are qualified is a reasonable accommodation under the ADA. St. Vincent will also be required to provide training on the ADA’s requirements to appropriate personnel, and submit annual compliance reports to the EEOC during the decree’s two-year term.

“This lawsuit demonstrates that employers should be aware of their obligation to provide a transfer as a reasonable accommodation for employees who are qualified individuals with disabilities,” said EEOC Regional Attorney Kenneth Bird.

The EEOC’s Indianapolis District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Indiana, Kentucky, Michigan and western Ohio, with field offices in Louisville, Cincinnati, and Detroit.

Hawaii 5 Uh-Oh: Island Tour Co. in $570K Settlement of Male-on Male Harassment Case

The CBS show Hawaii 5-0 chronicles the derring-do of this band of crime fighters. But to stop alleged male-on-male harassment at Hawaii tour companies, the intervention of the Equal Employment Opportunity Commission was needed.

Three related Hawaii tour companies–Discovering Hidden Hawaii Tours, Inc., Hawaii Tours and Transportation Inc. and Big Kahuna Luau, Inc.–will pay $570,000 and provide other relief to settle a sexual harassment suit filed against the companies by the EEOC, the federal agency announced today.

The EEOC filed suit against the three companies in 2017, charging that the male president of Discovering Hidden Hawaii Tours engaged in a pattern of sexually harassing male employees, many of whom were subsequently forced to quit as a result of the egregious harassment or were retaliated against for reporting the harassment, thereby violating Title VII of the Civil Rights Act of 1964 (EEOC v. Discovering Hidden Hawaii Tours, Inc. et al, Case No: 1:17-cv-00067-DKW-KSC).

As part of the settlement announced today, the parties entered into a three-year consent decree providing $570,000 in damages to a class of male employees. The decree requires that the alleged harasser not have further involvement in the operations and divested of control of the companies. The companies will designate an external equal employment opportunity (EEO) consultant to ensure the companies’ compliance with Title VII and anti-retaliation policies and procedures.

The decree also requires an independent complaint process and impartial investigations, together with a centralized tracking system for harassment and retaliation complaints and provisions holding supervisors, managers and officers of the companies accountable for harassment and retaliation. Annual training on sexual harassment and retaliation will be provided, especially for the president and other supervisors and managers, to educate them on their rights and responsibilities on sexual harassment and retaliation with the goal of preventing and deterring any discriminatory practices in the future.

“This settlement sends an unequivocal message that accountability is required regardless of who the alleged harasser is and no one is above the law under Title VII,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Hawai’i in its jurisdiction, “The EEOC will continue to relentlessly enforce laws against any sexual harassment in workplaces.”

Glory Gervacio Saure, director of the EEOC’s Honolulu Local Office, added, “Unfortunately, our society still stigmatizes the victims, not the perpetrators, of sexual harassment. Especially in light of the #MeToo movement, it is critical for victims to speak up, despite the stigma, so that we can effectively address sexual harassment in the workplace.”

According to the company’s website, http://www.discoverhiddenhawaiitours.com, Discovering Hidden Hawaii Tours provides guided tours of Oahu, Maui, the Big Island and Kauai.

Individuals who may have experienced sexual harassment or have information pertaining to sexual harassment in connection with employment at Discovering Hidden Hawaii Tours should contact the EEOC at 808-541-3133 for more information.

Here’s the Beef: Burger King Franchise Dishes Out $55K to Settle Sexual Harassment Lawsuit

Sexual harassment in the fast-food industry is a problem. Now at least it should be less of a problem at this particular Illinois burger franchise.

Burger King franchisee Heartland Food LLC, of Downers Grove, Ill., will pay $55,000 and furnish other relief to settle a sexual harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, Heartland Food violated federal law by subjecting a female employee to sexual harassment by a male manager at a Burger King restaurant in Palatine, Ill. Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination, including harassment, on the basis of sex. The EEOC filed its lawsuit on April 10 in U.S. District Court for the Northern District of Illinois in Chicago (Civil Action No. 18 C 2534) after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, entered by Judge Rebecca Pallmeyer, Heartland Food will pay $55,000 and furnish other non-monetary relief.

“We are gratified that vigorous enforcement on the Commission’s part has led to appropriate corrective action and compensation for the victim,” said Julianne Bowman, EEOC ‘s district director in Chicago.

EEOC Regional Attorney Gregory Gochanour noted that the settlement was negotiated before the parties engaged in extended litigation or pretrial discovery.

Gochanour said, “We appreciate Heartland Food’s determination to work with the EEOC to resolve this case quickly by providing appropriate relief.”

The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Iowa, Minnesota, North Dakota, South Dakota and Wisconsin with Area Offices in Milwaukee and Minneapolis.

$20M in DOL Grants Available To Help Persons With Work-Related Disabilities Remain on Job

We’re a better country when everyone who is able can work–and that includes workers who’ve been injured or ill.

The U.S. Department of Labor last Thursday announced the availability of $20 million in grants to help Americans who are injured or ill remain in or return to the workforce. The grants are intended to identify new, replicable strategies to help individuals with a work-related disability stay on the job.

“America’s workforce is strengthened by the participation of all Americans. After an injury or illness, it is critical for workers to have the ability to return to the labor force as quickly as possible,” said U.S. Secretary of Labor Alexander Acosta. “These grants will help develop innovative strategies that enable injured or ill Americans to return to work so they can support themselves and provide for their families.”

The grants represent the first phase of funding for Retaining Employment and Talent After Injury/Illness Network (RETAIN) Demonstration Projects, which will be administered by the Department’s Office of Disability Employment Policy (ODEP), in partnership with the Department’s Employment and Training Administration  and the Social Security Administration (SSA).

Successful applicants will propose coordinated employment and health services through an integrated network of partners, including state and/or local workforce development agencies; health-care systems and/or provider networks; and other strategic partners, such as employers or insurers.

The Department anticipates awarding up to eight grants of approximately $2.5 million each to be spent over an 18-month period for planning and start-up activities, including the launch of a small pilot demonstration. Near the conclusion of this first phase, the Department anticipates competitively awarding up to four of the Phase One grantees with additional funding up to approximately $19.5 million each to implement their demonstration projects at full scale. The Department anticipates Phase Two will span 42 months, including 30 months for project implementation and 12 for closeout and final assessment activities. The SSA will administer an independent evaluation of the RETAIN projects.

Eligible applicants are state Departments of Labor, state Workforce Development Agencies, or an equivalent entity with responsibility for labor, employment, and/or workforce development; and entities described in section 166(c) of the Workforce Innovation and Opportunity Act relating to Indian and Native American programs. Applicants are also required to partner with the State Workforce Development Board and State Health Department or equivalent entities; health-care systems practicing coordinated care and population health management. Applicants and may also partner with other equivalent entities generally responsible for regulating, managing or influencing the provision of health services.

The full announcement for this grant opportunity can be found at https://www.grants.gov or https://www.dol.gov/odep. Applications will be accepted until July 23, 2018. In addition, there will be a prospective applicant webinar held for this grant competition. The date and access information for the webinar will be posted on ODEP’s website in the near future at https://www.dol.gov/odep.

$70K Settlement in Sexual Harassment Settlement Against Dollar General Store

For a chain that promises big savings, Dollar General is ponying up big money to make a sexual harassment lawsuit go away.

Dolgencorp, LLC, a wholly owned subsidiary of retail chain Dollar General Corporation, will pay $70,000 and provide other relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced May 22.

According to the EEOC’s lawsuit, the store manager at Dollar General’s Red Banks, Miss., store subjected a female sales associate to unwanted sexually laced comments, text messages, and gestures. Although other female employees had previously complained about the same manager, the harassment continued. Dollar General continued to employ the manager for several months after the sales associate’s initial complaint, the EEOC said.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in February 2017 (EEOC v. Dolgencorp, LLC, d/b/a Dollar General Stores, Inc., Case No. 3:17-cv-00023-MPM-RP) in U.S. District Court for the Northern District of Mississippi at Oxford after first attempting to reach a pre-litigation settlement through its conciliation process.

Besides the monetary relief, the consent decree approved by Judge Michael P. Mills:

• enjoins Dollar General’s stores in the district of the Red Banks store from unlawful sexual harassment in the future;
• requires mandatory sexual harassment training, with civility and bystander intervention training, to all employees, including the district manager, store manager, and assistant store manager;
• requires annual training for the store manager, district manager, regional directors and human resource managers within the district of the Red Banks store;
• requires Dollar General to notify the EEOC of future sexual harassment complaints; and
• requires annual reporting to the EEOC during the decree’s18-month term, to include reporting of future sexual harassment complaints and training.

“While the recent #Me Too movement has shone a light on the prevalence of sexual harassment in the workplace, the EEOC has long remained on the front lines litigating these types of cases on behalf of victims, including vulnerable women in low-wage industries such as the retail, warehousing and food services industries in the South,” said Regional Attorney Faye Williams of EEOC’s Memphis District Office, which serves Tennessee, Arkansas and Northern Mississippi. “The EEOC will continue to bring these lawsuits. Employers who allow their supervisors or managers to subject their employees to sexually harassing behavior can expect that serious repercussions will follow.”

EEOC Trial Attorney Markeisha Savage added, “As we have said time and time again, having an anti-harassment policy that looks good on paper does not satisfy federal prohibitions against sexual harassment in the workplace. In fact, in this day and age, one would expect a corporation as large as Dollar General to already have such a firm policy in place and seriously enforced. In addition to having an anti-harassment policy, employers must also enforce it. An unenforced anti-harassment policy is tantamount to having no policy at all.”

Headquartered in Goodlettsville, Tenn., Dollar General represents one of the largest discount retailers in the United States. According to company information, it operates over 14,600 stores in 44 states and plans to open 900 new stores in fiscal year 2018. Dollar General employs approximately 129,000 people.

EEOC Recovers $50K for Employee Denied Additional Time Off to Recover From Toe Surgery

But for being a little more accommodating of this employee, this N.C. company might have avoided the hassle of an EEOC lawsuit and ensuing settlement.

Heritage Home Group, LLC, a North Carolina corporation that designs, manufactures, sources and retails home furnishings, will pay $50,000 and provide other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced on May 22. The EEOC charged that Heritage Home violated federal law when it failed to provide a machine operator at its Hickory Chair Company manufacturing plant in Hickory, N.C., an accommodation for his disability. The federal agency further charged that Heritage Home fired the employee because of his disability.

According to the EEOC’s lawsuit, the employee (who wishes to remain anonymous) is a person with diabetes. He developed an infection and underwent surgery for amputation of one of his toes in March 2016. The employee was also diagnosed with peripheral neuropathy and needed additional leave to recover fully. The employee informed Heritage Home of his anticipated return to work the first week of June 2016. Heritage Home informed the employee in a letter dated April 29, 2016 that it would be terminating his employment because the employee would not be able to return to work until June.

Such alleged conduct violates the Americans with Disabilities Act of 1991 (ADA), which requires employers to provide reasonable accommodations to qualified individuals with a disability unless doing so would be an undue hardship. The EEOC filed suit in U.S. District Court for the Western District of North Carolina, Statesville Division (EEOC v. Heritage Home Group, LLC, Civil Action No. 5:18-CV-00018) after first attempting to reach a pre-litigation settlement through its conciliation process.

As part of the settlement, Heritage Home is required to pay the employee $50,000. In addition, the company has entered into a two-year consent decree that requires it to implement an ADA policy; conduct annual training for its human resources and management personnel on the ADA and its requirement that employees be provided with reasonable accommodations absent an undue hardship; and report to the EEOC on its accommodation practices.

“This settlement recognizes that employees with disabilities are important members of the workforce and should be provided equal opportunities to succeed in the workplace,” said Lynette Barnes, regional attorney of the EEOC’s Charlotte District Office.

$45K to Settle ADA Suit Over Loss of Employment Offer Because of Drug Test Results

Again, an employer has been dinged for denying a job opportunity because the applicant was taking legally prescribed medication.

M.G. Oil Company, doing business as Happy Jack’s Casino, has agreed to pay $45,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) in 2016, the agency announced today. M.G. Oil of Rapid City, South Dakota, is also affiliated with Automatic Vendors, the largest vending company in South Dakota; Corner Pantry, a division of convenience stores; and, various other businesses such as casinos, including Happy Jack’s in Sioux Falls.

According to the EEOC’s lawsuit, M.G. Oil withdrew an offer of employment to an applicant for a cashier position at the casino based on a drug test showing the lawful presence of a prescribed medication. M.G. Oil asserted it relied on a third-party testing vendor to inform M.G. Oil that the applicant was taking prescription drugs. M.G. Oil attempted to bring the testing company into this lawsuit but that third-party action was dismissed by the District Court. The complaint also alleged that M.G. Oil maintained an unlawful policy requiring all employees to report prescription and nonprescription medication that they are taking.

The EEOC filed suit (EEOC v. M.G. Oil Company d/b/a Happy Jack’s, 4:16-cv-04131-KES (D. S.D.) in U.S. District Court for the District of South Dakota after first attempting to reach a pre-litigation settlement through its conciliation process. The suit charged that M.G. Oil violated the Americans with Disabilities Act (ADA) by its failure to hire the applicant and for maintaining an illegal policy relating to reporting prescription drugs. The consent decree settling the suit provides that M.G. Oil will pay the applicant $45,000 and adopt company-wide policies to prevent future hiring issues under the ADA and will only require employees to report prescription medications if M.G. Oil has a “reasonable suspicion” that the medication may affect performance.

“During an investigation of a single applicant who was not hired, the EEOC reviewed M.G. Oil’s policies, found a new ADA violation, and now a companywide change will be made that will benefit over one thousand employees,” said Julianne Bowman, the EEOC’s district director in Chicago, who managed the federal agency’s pre-suit administrative investigation.

Greg Gochanour, the regional attorney for the EEOC’s Chicago District, added, “Employers must follow the law and take steps to ensure that their third-party vendors and independent contractors do the same.”

The EEOC’s Chicago District Office is responsible for processing charges of employment discrimination, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

Rocky Mountain High: $2.66M Awarded in Equal Pay Lawsuit Against Denver Univ. Law School

The sound you hear reverberating on this law school campus is are the cheers of female faculty members who will finally catch up with their male counterparts earning more money then them.

The University of Denver will pay $2.66 million and furnish other relief to settle a pay discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced May 17.

The EEOC’s lawsuit charged that the university violated federal law by paying a class of female full professors at the Sturm College of Law lower salaries than it paid to their male counterparts who were performing substantially equal work under similar working conditions.

According to the EEOC’s lawsuit, as of October 2013, salaries of female full professors were on average, $19,781 less than those of male full professors, and all the women’s salaries were below the average salary paid to men. Despite formally recognizing the significant pay disparity in a 2013 memo, the university declined to take corrective action by adjusting salaries of female full professors.

Such alleged conduct violates the Equal Pay Act of 1963 and Title VII of the Civil Rights of 1964, which both prohibit discrimination in compensation based on sex. The EEOC filed its lawsuit, EEOC et al. v. University of Denver, Case No. 1:16-cv-02471-WYD-MJW, in 2016 in U.S. District Court for the District of Colorado, after first attempting to reach a pre-litigation settlement through its conciliation process.

“The favorable resolution of this case is a clear example of the EEOC’s commitment to fully enforcing our federal laws against pay discrimination.  I hope cases like these get the attention of all employers and lead them to not only review their pay practices, but take action to address discrimination when they find it.” said EEOC Acting Chair, Victoria A. Lipnic.

In addition to $2.66 million in monetary damages to seven female full professors who participated in the lawsuit, the consent decree settling the suit also requires the University of Denver to increase the 2018 salaries of the seven female professors; annually publish salary and compensation information to tenure, tenure-track, and contract faculty; and employ a labor economist to conduct an annual compensa­tion equity study.

The university will also work with an independent consultant to review methods and criteria used to determine pay and compensation, and these standards used to determine raises each year will be announced to the faculty in advance of the academic year. The independent consultant will also assist the university to revise its anti-discrimination policies and to conduct an informational campaign and training on those anti-discrimination policies. The decree will remain in effect for six years, but may end a year early based on an established record of compliance. While the decree is in effect, the independent consul­tant will provide regular progress and compliance reports to both the EEOC and the University of Denver. The court approved the settlement and will retain jurisdiction while the decree is in effect.

“The Equal Pay Act and Title VII are clear that pay discrimination based on a person’s sex is a violation of federal law – no exceptions,” said EEOC Regional Attorney Mary Jo O’Neill. “As we just recently marked Equal Pay Day, the EEOC remains committed to elimination of pay discrimination in the workplace.”

Phoenix District Director Elizabeth Cadle said, “This resolution is an excellent result, not only for the seven women who will receive compensation and salary increases to address past pay inequities, but also for other faculty members who will benefit from increased pay transparency and an annual pay equity study targeted at preventing similar inequities from arising in the future.”

The University of Denver is a private research university in Denver made up of 13 undergraduate and graduate schools and colleges.

The EEOC’s Phoenix District Office has jurisdiction over Arizona, Colorado, New Mexico, Utah, and Wyoming.

CFO Canned Because She Took Medication for Anxiety Disorder, EEOC Alleges in ADA Lawsuit

This company has run into a legal buzzsaw with the federal government over its treatment of an employee with anxiety disorder.

Cooper Machine Company, Inc., a Wadley, Ga., company that sells and manu­factures equipment used in the sawmill industry, violated federal law by firing an employee because of her disability, anxiety disorder, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it recently filed.

According to the EEOC’s lawsuit, the employee, who worked for the company as a purchasing agent, was terminated by the company’s chief financial officer after informing the company that she was required to take medication because of her disability.

Such alleged conduct violates the Americans with Disabilities Act. The EEOC filed suit (Equal Employment Opportunity Commission v. Cooper Machine Company, Inc., Civil Action No. 1:18-cv-00085-JRH-BKE) in U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process. The federal agency seeks back pay, compensa­tory damages, and punitive damages for the employee, as well as injunctive relief designed to prevent such discrimin­ation in the future.

“Federal law does not allow employers to terminate an employee merely because the employer believes there are ‘medical issues,'” said Bernice Williams-Kimbrough, director of the EEOC’s Atlanta District Office.

Antonette Sewell, regional attorney for the Atlanta District Office, added, “The company directly told the employee why it was terminating her and gave her a written document stating their reason. Such a termination is illegal and has been illegal since the ADA was passed.”

My thanks to Jon Hyman for highlighting this blog entry on his June 1 weekly roundup for the Ohio Employer’s Law Blog.

EEOC: NY Staffing Co. Violated Multiple Laws

The fix is allegedly in at this staffing agency against black applicants, persons with disabilities, and persons over age 50.

Staffing Solutions of WNY Inc., a Buffalo-based staffing company that places employees with clients throughout Western New York, violated federal laws prohibiting hiring discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on May 17.

According to the complaint, EEOC contends that Staffing Solutions either refused to hire highly qualified Black applicants or placed them in the lowest paying, least desirable jobs.  Further, EEOC alleges that Staffing Solutions’ owner, Kathleen Faulhaber, regularly referred to Black applicants as “n—-rs,” instructed her staff to comply with clients’ race and sex preferences, placed employees in positions based on race and sex, and rejected pregnant applicants.

Additionally, the complaint alleges that applicants over the age of 50, applicants with disabilities, and those whom the company deemed disabled were routinely rejected by Staffing Solutions. EEOC contends that applicants were improperly asked for their dates of birth and about injuries and medical conditions, and that Staffing Solutions rejected applicants considered too old and those who revealed health issues, such as cancer, blindness, or back injuries.

Finally, EEOC charges that an office manager for Staffing Solutions complained about the illegal hiring practices and voiced objections to Faulhaber’s repeated use of racial slurs, but was warned that she would be fired if she failed to comply.  The office manager felt she had no choice but to resign.

Staffing Solutions’ alleged hiring practices violate Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act which prohibit discrimination on the basis of age, disability, race, or sex, as well as retaliation.

The EEOC filed suit in U.S. District Court for the Western District of New York (EEOC v. Staffing Solutions of WNY, Inc., Civil Action No. 1:18-cv-00562) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay; compensatory, liquidated, and punitive damages; and injunctive relief. The agency’s litigation effort will be led by Trial Attorneys Daniel Seltzer, Elizabeth Fox-Solomon, and Supervisory Trial Attorney Nora Curtin.

“Staffing Solutions’ conduct hearkens back to a time over half a century ago, before the passage of federal laws that make this type of discriminatory hiring illegal,” said Jeffrey Burstein, regional attorney for EEOC’s New York District Office. “The EEOC is sending a clear message with this lawsuit: those days are over.”

Kevin Berry, the EEOC’s New York district director, added “Staffing companies are playing an increasingly large role in our economy. The EEOC will fight to ensure that they do not become an instrument of discrimination. The law is clear that honoring discriminatory client requests is illegal.”

“I’m proud to have been born and raised in Buffalo,” said Curtin. “Buffalonians, and all Americans, deserve to be hired based on their qualifications, without regard to age, disability, race or sex.”

Eliminating barriers in recruitment and hiring, and preserving access to the legal system by eliminating retaliation are national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).

The EEOC’s New York District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Connecticut, Maine, Massachusetts, New Hampshire, New York, northern New Jersey, Rhode Island, and Vermont. The Buffalo Local Office conducted the investigation resulting in this lawsuit.