Employer Caves in EEOC Suit Over Firing of Older Worker Following Talk on Retirement

The situation got quickly out of hand when a young supervisor hassled an older employee about retiring.

Burrow Global Services, LLC, headquartered in Houston, Texas, will pay a former employee $50,960 to resolve an age discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced Monday. Burrow Global provides engineering, design, and related technical services for clients in the petrochemical and refining industries.

According to the EEOC’s suit, filed in 2020, a senior electrical designer over age 60 was subjected to age discrimination when a much younger individual became his supervisor. Almost immediately, the new supervisor began making comments about retirement and repeatedly asking the employee when he planned to retire, the EEOC said. The lawsuit further charged that, shortly thereafter, the supervisor made the decision to terminate the employee. Burrow Global subsequently offered the employee’s position to a significantly younger person, the EEOC said.

Such alleged conduct violates the Age Discrimination in Employment Act (ADEA), which prohibits discrimination on the basis of age. The EEOC filed its suit (Civil Action No. 4:20-cv-00423) in U.S. District Court for the Southern District of Texas after first attempting to resolve the case through its administrative conciliation process.

Under a three-year consent decree entered March 26, 2021, Burrow Global will pay the employee $50,960 in back pay and liquidated damages and will also conduct training regarding the ADEA, update its ADEA policies, post a notice prohibiting discrimination, and provide regular reports to the EEOC.

“The ADEA protects workers age 40 and over from adverse actions taken by employers on the basis of age,” stated Rudy Sustaita, regional attorney for the EEOC’s Houston District Office. “We will continue to bring lawsuits to enforce the law in instances where age was a cause of an adverse employment action.”

Connie Gatlin, the trial attorney in charge of the case, added, “Employers are prohibited from making employment decisions on the basis of an employee’s age if the he or she is 40 or older. As the agency that enforces the ADEA, we will always seek to hold employers accountable for such actions.”

The EEOC’s Houston District Office is located on the sixth floor of the Leland Federal Building at 1919 Smith St. in Houston.

Hear This: Subway Franchise Settles EEOC Suit Over Rejection of a Hearing-Impaired Applicant

Hearing-impaired job applicants must be given a fair chance at employment–just like persons without impairments.

A Bloomington, Ind., fast-food sandwich shop will pay $28,700 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced Friday.

The EEOC charged in its suit that Ranrae, Inc., doing business as Subway violated federal law by rejecting a hard-of-hearing applicant because of his hearing and resultant speech impairments.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (Case No. 1:20-CV-2450-JRS-DML) in U.S. District Court for the Southern District of Indiana, Indianapolis Division after first attempting to reach a pre-litigation settlement through its administrative conciliation process.

In addition to the monetary settlement, the two-year consent decree settling the suit requires Subway to comply with prohibitions against further discrimination, train its supervisors and managers, post a notice, and report to the EEOC.

“Disability-related discrimination continues to be a troubling barrier to employment,” said EEOC Regional Attorney Kenneth L. Bird. “This employer wisely agreed to take the steps contained in the consent decree that will better ensure disabled applicants are not discriminated against again and may enjoy the full access to employment intended by the ADA.”

The Indianapolis District Office of the EEOC oversees Indiana, Michigan, Kentucky, and parts of Ohio.

Main Event: For This Ohio Restaurant, It is Coming (Belatedly) into ADA Compliance

Another employer needs to get up to speed on its ADA obligations.

Main Event Entertainment, Inc., an entertainment and dining establishment in Avon, Ohio, will pay $40,000 and furnish equitable relief to settle a disability discrimination and retaliation charge filed with the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Wednesday.

Following an investigation, the EEOC found reasonable cause to believe that Main Event failed to hire an applicant for a technician position because of his disability and in retaliation for his asking for a reasonable accommodation of his disability. The EEOC also determined that Main Event failed to maintain personnel and employment records as required by the EEOC’s regulations. Main Event does not admit to any wrongdoing and does not concede that any violation of the law took place, but agreed to a voluntary resolution of the charge.

The Americans with Disabilities Act (ADA) prohibits employment discrimination based on disability. It also requires employers to provide a reasonable accommodation to an employee or job applicant with a disa­bility, unless doing so would pose an undue hardship. The ADA also prohibits employers from engaging in retaliation against employees for complaining about such practices.

In addition to the monetary relief for the applicant, Main Event will provide training on the ADA, revise and disseminate its reasonable accommodation policy, and revise the anti-discrimination statement on its emp­loyment applications. The company will also report to the EEOC on its future hiring and responses to reason­able accommodation requests and post a notice regarding the settlement. The EEOC will monitor compliance with the voluntary settlement for two years.  

“We applaud Main Event Entertainment for voluntarily resolving this matter and for implementing important policy changes to protect the employment rights of individuals with disabilities, including providing training on the ADA and revising its reasonable accommodation policies,” said Karen McDonough, acting director of the Cleveland Field Office and enforcement manager of the Philadelphia District Office.

The EEOC’s Cleveland Field Office is one of four offices in the Philadelphia District, which has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia, and parts of New Jersey and Ohio. Attorneys in the Philadelphia District Office also prosecute discrimination cases in Washington, D.C., and parts of Virginia.

OSHA Sues Manufacturer in Whistleblowing Case

Here’s a cautionary tale about taking vengeance on an employee who blows the whistle on safety violations.

After a production operator at a carbon fiber manufacturer brought various safety concerns to management, he approached a third-party auditor reviewing operations at the company’s St. Peters facility with his concerns. The next day, his employer suspended him.

The worker then filed a safety complaint with the U.S. Department of Labor’s Occupational Safety and Health Administration. Fourteen days after the suspension, his employer terminated him.

OSHA investigated the worker’s allegation that his employer, Zoltek Corp. fired him in April 2019 in retaliation for reporting unsafe working conditions. On March 9, 2021, OSHA filed a complaint in the U.S. District Court for the Eastern District of Missouri, Eastern Division, alleging the company violated the whistleblower statutes when it terminated his employment.

The complaint seeks back wages, reinstatement and damages for the employee, and an order requiring Zoltek Corp. to post a notice regarding employees’ rights to report unsafe working conditions without fear of retaliation.

“Commitment to workplace safety should be commended – not punished,” said OSHA’s Regional Administrator Kimberly Stille in Kansas City, Missouri. “OSHA’s Whistleblower Protection Program guarantees employees the right to speak out when they believe their safety and health is in jeopardy.”

Based in Bridgeton, Zoltek Corp. is a global manufacturer with locations in Utah, Mexico and Hungary. The company disputes the department’s allegations.

OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of Section 11(c) of the Occupational Safety & Health Act and more than 20 whistleblower statutes These statutes protect employees from retaliation for reporting violations of workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities and tax laws; as well as for engaging in other related protected activities. Learn more about whistleblower protections.

Pregnant With Possibilities, But not a Job; NYC Cantina Pays $45K to Fired Server in EEOC Suit

Sadly, pregnancy discrimination continues to be a problem in the workplace.

A restaurant group that includes Lucy’s Cantina Royale, a Mexican restaurant and bar in Manhattan, has agreed to pay $45,000 and provide extensive non-monetary relief to settle a preg­nancy discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Wednesday. That restaurant group includes the managing companies Host Restaurants and Imian Partners; the Manhattan restaurants Bill’s Townhouse, Campagnola, Galli, Local NYC, Lucy’s Cantina Royale, and Printer’s Alley; and several unnamed restaurants in develop­ment.

The EEOC’s lawsuit asserted that the restaurant group fired a server working at Lucy’s Cantina Royale after it learned of her pregnancy and she had several pregnancy-related medical issues at work. No reason was provided for her sudden termination except that she was no longer “a good fit.” Although the employee had signed an arbitration agreement that may have prevented her from filing her own claim in federal court, such agreements do not bar EEOC enforcement actions.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which protects emp­loyees from workplace discrimination based on pregnancy. The EEOC filed suit in U.S. District Court for the Southern District of New York (U.S. EEOC v. Red One Plaza, LLC d/b/a Lucy’s Cantina Royale, et al., Civil Action No. 20-cv-07766) after first attempting to reach a voluntary pre-litigation settlement through its conciliation process. This case was litigated by EEOC Trial Attorney Liane T. Rice and supervised by Acting Supervisory Trial Attorney Sara Smolik.

On March 23, 2021 U.S. District Court Judge Lorna G. Schofield entered a two-and-a-half-year consent decree that resolves the case. The decree provides $45,000 for back pay, emotional dis­tress and other damages suffered by the discharged employee. The decree also includes substantial non-monetary relief, including revisions to anti-discrimination policies, trainings for managers and emp­loyees, a monitoring period, and periodic reporting to the EEOC.

“Federal law protects the job security of pregnant employees,” said EEOC Regional Attorney Jeffrey Burstein. “Employers must allow a pregnant employee to continue working as long as she is willing and able to work.”

The EEOC’s New York District Director, Judy Keenan, added, “Employees should also be aware that signing an arbitration agreement does not bar them from filing with a claim with EEOC.”

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

Seeds of Hope: OSHA, N.D. Employer Ink Agreement to Boost Safety in Grain Bins

Other seedmakers can avoid the mistakes of this company and keep their employees safe.

A North Dakota seed production company has committed to changing its safety procedures and training following a worker’s severe and life-altering injury in 2020.

Red River Commodities Inc. signed a settlement agreement with the U.S. Department of Labor’s Occupational Safety and Health Administration after an investigation into the circumstances of how an employee suffered multiple lacerations and the partial amputation of his leg when caught in an operating grain bin auger on Aug. 20, 2020.

OSHA’s investigation determined the employee had slipped into an operating outfeed auger while clearing sunflower seeds from a grain bin. The agency cited the company with seven willful violations, one repeat violation, four serious and two other-than-serious violations of the agency’s grain handling, confined space, machine safety and electrical safety regulations. Inspectors also found that Red River did not sufficiently train workers to recognize hazards and take proper safety measures.

The agreement requires the company to pay a penalty of $225,000, provide immediate and annual training to employees on grain bin entry procedures and hazards, and revise its permit required confined space and grain bin entry procedures company-wide. The company has already purchased atmospheric testing equipment.

“This tragedy was preventable. Red River Commodities now understands the value of OSHA’s safety requirements and the importance of effective employee training and adherence to safety procedures,” said OSHA Area Director Scott Overson in Bismarck, North Dakota. “Red River officials are now working with OSHA to abate the safety hazards at the Fargo work site and ensure compliance at its facilities nationwide.”

Between 2014 and 2019, OSHA found similar violations in seven of nine previous inspections. While the company paid its penalties, the agreement with OSHA indicates that the worker’s 2020 injury will finally bring about the change necessary to prevent future injuries at the company’s facilities.

A solely owned subsidiary of Amsterdam Commodities N.V. in Rotterdam, Netherlands, Red River Commodities Inc. produces confectionary sunflower, and seeds from other specialty crops such as flax, millet and pumpkin at facilities in North Dakota, Kansas and Texas. The Fargo facility stores, mixes and packages grain products for birdseed.

To raise awareness of the grain-handling industry’s workplace hazards, OSHA is joining with industry leaders and safety professionals nationwide for the 2021 national Stand-Up 4 Grain Safety Week, from March 29 to April 2, 2021. OSHA also maintains its Grain Handling Industry Local Emphasis Program to focus on the grain and feed industry’s six major hazards: engulfment, falls, auger entanglement, “struck by,” combustible dust explosions and electrocution hazards.

Run Over: OSHA Fines Cargo Co. $156K for Safety Violations Causing Employee Injury

Buckling up would have spared an employee injury–and saved his employer big bucks.

Working at a Chicago shipping facility, an employee suffered a leg amputation and crushed pelvis after he fell off and was then run over by a powered heavy-lift vehicle used to move and stack steel containers. The 30-year-old recent hire suffered injuries after being allowed to ride unsecured on the vehicle.

The U.S. Department of Labor’s Occupational Safety and Health Administration cited ITS Technologies and Logistics LLC – operating as ITS Conglobal – for one willful violation and two serious violations, and proposed penalties totaling $156,038.

OSHA investigators found the intermodal cargo container shipping facility allowed employees to ride unsecured on the reach stacker, in violation of company and OSHA safety procedures. Additionally, ITS Conglobal failed to provide employees refresher training or evaluate them every 3 years on their ability to safely operate powered industrial vehicles, as required.

“This worker’s life-altering injuries could have been prevented if ITS Conglobal had followed its own and federal safety regulations against employees riding improperly on moving powered industrial vehicles,” said OSHA Chicago South Area Director James Martineck. “Each year, hundreds of employees suffer injuries from powered industrial vehicle hazards and it remains one of OSHA’s top 10 cited safety standards. Employers must review and enforce workplace safety procedures.”

OSHA has specific regulations and required training for the operation of powered industrial vehicles. From 2011 to 2017, 614 workers lost their lives in forklift-related incidents and more than 7,000 nonfatal injuries with days away from work occurred every year.

Based in Darien, Illinois, ITS ConGlobal is an intermodal infrastructure services provider for global and rail shipping. The company has about 4,000 employees in more than 120 facilities throughout the U.S., Mexico and Central America and provides shipping services with North American railroads, global container shipping and leasing companies, and chassis operators.

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director or contest the findings before the independent Occupational Safety and Health Review Commission

EEOC: Mistreatment of AAPI Persons Must Stop

The EEOC this week added to the growing denunciation of mistreatment of Asian Americans and Pacific Islanders

The U.S. Equal Employment Opportunity Commission (EEOC) unanimously approved a resolution condemning the recent violence, harassment, and acts of bias against Asian Americans and Pacific Islanders in the United States, the agency announced yesterday.  The resolution reaffirms the Commission’s commitment to combat all forms of harassment and discrimination against members of AAPI communities, and to ensure equal opportunity, inclusion, and dignity for all in the workplace.

“The Commission condemns the recent violence and discrimination against AAPI persons in the strongest possible terms,” said EEOC Chair Charlotte A. Burrows.  “Hatred, xenophobia, and racism violate our nation’s core principles.  The Commission stands in solidarity with the victims, their families, and AAPI communities across the nation, and we pledge to work together to address harassment, bias, and discrimination in the workplace.”

The EEOC advances equal opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information about the Commission is available on EEOC’s website at www.eeoc.gov.

With the Grain: OSHA Touts Collaborative Safety Week to Eliminate Hazards in Storage Facilities

We depend a lot on grain in our diets; let’s ensure those who store it have safe working conditions.

Today, six of every 10 workers trapped in a grain bin don’t make it out alive. This is a frightening reality, but one that the nation’s 8,378 off-farm grain storage facilities’ operators can change by following common sense approaches that truly may be the difference between life and death.

“Every year, hundreds of employees are injured or die from preventable hazards while working in grain storage and handling. Safety doesn’t need to be big to be effective.”

Join the Conversation | #StandUp4GrainSafety

How to make these changes will be the focus of the 5th annual Stand Up 4 Grain Safety Week, from March 29 through April 2, 2021. The event is a collaboration between the U.S. Department of Labor’s Occupational Safety and Health Administration, the Grain Handling Safety Coalition, the Grain Elevator and Processing Society and the National Grain and Feed Association.

“Stand Up 4 Grain Safety Week will bring industry professionals together to focus on how small changes can eliminate dangerous hazards that can cause great harm to their employees,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Jim Frederick. “This important collaboration will strengthen our coalition of agribusiness and safety professionals, and reinforce our shared commitment to safety and training.”

Stand Up 4 Grain Safety Week includes a comprehensive kick-off event ­­on Monday, March 29, with live safety demonstrations and success stories. The Grain Handling Safety Coalition’s free virtual webinars during the week will focus on near miss reporting, the impact of quality on safety, bin safety and developing emergency action plans. Register for webinars here.

To explain how industry employers can participate in Stand Up 4 Grain Safety Week, the coalition has developed a video safety message. View it and learn how small changes can have a big impact on grain-handling safety.

• ‒ Turn off/lockout equipment before entering a bin or performing maintenance.
• ‒ Never walk down grain to make it flow.
• ‒ Test the air in the bin before entering.
• ‒ Use a safety harness and anchored lifeline.
• ‒ Place a trained observer outside of the bin in case of an emergency.
• ‒ Do not enter a bin where grain is built up on the side.
• ‒ Control the accumulation of grain dust through housekeeping.

Alliance members will be providing information to the agribusiness community and the public through newsletters, emails and placement of information on the Stand Up webpage and social media using the hashtag #StandUp4GrainSafety.

OSHA held the first Stand Up 4 Grain Safety Week in 2017 and the event continues to grow as the organizations combine their talents, resources and knowledge to develop more training and educational offerings, expand partnerships with other industry organizations, and reach across the entire grain industry spectrum.

OSHA’s Grain Handling Safety Standards focus on the grain and feed industry’s six major hazards: engulfment, falls, auger entanglement, “struck by,” combustible dust explosions and electrocution hazard. Learn more about OSHA and agriculture industry safety resources.

Ice Cream Maker Cited Again for Safety Violations

We all love ice cream–but at what price to workers’ safety?

Despite two severe amputation injuries in 2018 and 2020 on the same machine at a Lakewood ice cream manufacturing plant, a recent federal safety and health inspection found the company continues to ignore protocols designed to prevent other workers from suffering similar injuries.

A maintenance mechanic lost two fingers while repairing an ice cream wrapper machine. Following a September 2020 investigation, OSHA found that Fieldbrook Foods Corp. willfully failed to shut down and isolate energy to the machine during repair work. The U.S. Department of Labor’s Occupational Safety and Health Administration has proposed $237,176 in penalties.

The same machine was involved in a 2018 incident in which a sanitation worker lost one finger and fractured another when his fingers got caught while repairing the jammed equipment.

In both instances, OSHA found Fieldbrook Foods Corp. violated safety standards for preventing accidental machine startup, a process known as lockout/tagout. The company employs about 200 workers in Lakewood.

“Fieldbrook Foods knew that machines must be completely disabled before workers perform service and maintenance. Instead of addressing the cited amputation hazards which led to two serious injuries, the company continues to expose its workers to dangerous machinery,” said OSHA Area Director Paula Dixon-Roderick, in Marlton, New Jersey.

Fieldbrook Foods Corp., a subsidiary of Wells Enterprises Inc., produces and sells frozen desserts under the Blue Bunny, Blue Ribbon, Original Bomb Pop and other brands. The company is the largest privately held, family-owned ice cream manufacturer in the U.S. Founded in 1913 in LeMars, Iowa, Wells produces more than 150 million gallons of ice cream per year and distributes products in all 50 states.

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.