Case 1:15-cv-01881-YK

Document 1

Filed 09/29/15

Page

1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT
OPPORTUNITY

Electronically Filed

COMMISSION,
CIVIL ACTION NO.

Plaintiff,
COMPLAINT AND JURY TRIAL
DEMAND

v.

P.H.

GLATFELTER,
Defendan

NATURE OF THE ACTION

This is

ADA")

an

of 1990,

unlawful
Stevens

action under Title I of the Americans with Disabilities Act

as

amended, and Title I of the Civil Rights

employment practices

("Stevens")

and

and to

Act of

provide appropriate relief to

class of similarly

1991,

("the

to correct

Charles A.
and

aggrieved post-offer applicants

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

employment practices

described below. As

Statement of Claims, P.H. Glatfelter

alleged with greater particularity in

("Glatfelter") voluntarily adopted for

positions involving operation of Powered Industrial

lift trucks, and similar industrial
from the

Trucks

("PITs") (e.g., forklifts,

vehicles) a physical qualification standard

Department of Transportation's Federal

Administration's

the

Motor Carrier

("DOT") physical qualifications

derived

Safety

for drivers of Commercial Motor

Case 1:15-cv-01881-YK

Vehicles. Glatfelter's DOT-based

PITs is

overly broad

against

individuals with actual

Glatfelter also

such

exams

foregoing conduct,

as

and

that

requires

covered

inquiries

described in

more

positions involving

employment
In

applying

actions

its

submit to medical

unlawful

detail

2 of 15

post-offer applicants

positions
are

Page

standard for

perceived disabilities.

or

employees seeking to work in the

The

qualification

and unlawful and results in adverse

qualification standard,

inquiries, where

Filed 09/29/15

Document 1

as

to current

and current

exams

and

employees.

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.

Section

706(0(1)

and

(3)

amended

("Title VII"),

the Civil

Rights

2. Venue is proper
are

12117(a), which incorporates by reference

of Title VII of the Civil

42 U.S.C.

2000e-5(f)(1)

Act of 1991, 42 U.S.C.

as

the

Rights Act of 1964,

and

(3);

employment practices alleged to

2000e-5(f)(3).

be unlawful

were

and

of the United States District Court

for the Middle District of Pennsylvania. See 42 U.S.C.

U.S.C.

and Section 102 of

1981a.

being committed within the jurisdiction

incorporating 42

as

12117(a),

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Case 1:15-cv-01881-YK

Page

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PARTIES
3.

Plaintiff, the United States Equal Employment Opportunity Commission (the

"EEOC"

or

is the

"Commission"),

Agency of the United

charged with the administration, interpretation,

and is

expressly

42 U.S.C.

(3)

authorized to

12117(a),

which

of Title VII, 42 U.S.C.

Rights Act of 1991,

4. Glatfelter is

bring this

action

and enforcement of the ADA

by

Section

incorporates by reference

2000e-5(f)(1)

42 U.S.C.

and

States of America

(3),

107(a)

Sections

of the ADA,

706(f)(1)

and

and Section 102 of the Civil

1981a.

Pennsylvania corporation that has been continuously doing

business in the Commonwealth of Pennsylvania.

5. Glatfelter is

multi-national paper products manufacturer with

production and manufacturing facilities

in

major domestic

Spring Grove, Pennsylvania,

and

Chillicothe, Ohio.
6. At all relevant times Glatfelter has

continuously employed at least

15

(fifteen)

employees.
7. At all relevant
an

times, Glatfelter has continuously been

an

employer engaged in

industry affecting commerce under Section 101(5) of the ADA,

12111(5),

and Section

101(7) of the ADA,

incorporates by reference
2000e

(g)

and

Section

701(g)

(h).

42 U.S.C.

and

(h)

42

U.S.C.

12111(7), which

of Title VII, 42 U.S.C.

Case 1:15-cv-01881-YK

8. At all relevant times Glatfelter has been

of the ADA, 42 U.S.C.

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covered

Page

entity under

4 of 15

Section

101(2)

12111(2).
CONDITIONS PRECEDENT

9. More than

Charge

thirty days prior to the

institution of this lawsuit, Stevens filed

of Discrimination with the Commission

alleging violations of the

ADA

by Glatfelter.
10. After

investigating

violations in the
Determination
reasonable

course

charge

of such

to

and

uncovering additional potential

investigation,

October 1, 2014,

on

cause

Stevens'

EEOC issued

believe that it had violated the ADA with respect to Stevens

a

specified class

of aggrieved

EEOC invited Glatfelter to join with the EEOC in informal

methods of conciliation to endeavor to eliminate the

identified and to
11. The EEOC

Letter of

notifying Glatfelter that there was

and further had violated the ADA with respect to

individuals.

ADA

discriminatory practices

provide appropriate relief.

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

acceptable to the
13. On

unable to

secure

from Glatfelter

conciliation agreement

Commission.

May 5, 2015,

EEOC issued Glatfelter

Notice of Conciliation Failure.

14. All conditions

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Case 1:15-cv-01881-YK

precedent to the

Page

5 of 15

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

qualification standard is promulgated

"DOT

on a

physical qualification standard applies to

in interstate

highway

Commercial Motor
17. Glatfelter
18. PITs
19.

C.F.R.

391.41 et seq.

(hereinafter

physical qualification standard").

16. The DOT

used

at 49

physical

are

Vehicle,

Operators

set

on a

regulations.
highway in

Commercial Motor Vehicles under DOT

of PITs

are

not

subject by

are

and meet the definition of a

forth in the

do not operate PITs

employees

not

as

commerce

drivers of vehicles that

law to the DOT

interstate

commerce.

regulations.

physical qualification

standard.
20. Glatfelter's paper

Chillicothe
21. At its

employ

individuals in

facilities in both

Spring

Grove and

positions requiring operation of PITs.

Spring Grove facility, Glatfelter has adopted a physical qualification

standard
DOT's

product manufacturing

applicable to any position involving operation of PITs

physical qualification

22. Glatfelter has

never

efforts to evaluate

or

that

copies the

standard.

conducted any validation studies

establish that its

or

undertaken any other

qualification standard, copying the DOT

Case 1:15-cv-01881-YK

physical qualification
and

predictive measure

Though

Glatfelter

of ability to

licensed,

even

particular medical
and
24.

6 of 15

which

in its

an

accurate

facility or that

physical qualification

standard to

positions

similarly apply the DOT

permit drivers of Commercial Motor Vehicles to

enumerated DOT

generally

based upon individualized

status and condition and

analysis

his/her past

physical

of the drivers'

driving performance

safety.

Operators

of PITs at Glatfelter's Chillicothe

to meet any

25. At its

production facility are not required

and

are

instead

subject to

operation based standards.

Spring Grove facility,

current

Glatfelter

requires

all

post-offer applicants

employees seeking employment in positions involving operation

undergo

medical

Glatfelter's
26. At its

physical qualification standard,

and

knowledge

to

DOT

if they fail to meet the

qualification standard,

Page

restrictive than necessary.

of PITs, Glatfelter does not

Exemption Programs,
be

safely operate PITs

or more

applies the

involving operation

Filed 09/29/15

standard for Commercial Motor Vehicles, is

such standard is not broader

23.

Document 1

exams/inquiries to

determine whether

and
of PITs

they satisfy

physical qualification standard.

Spring Grove facility,

if the results of a

post-offer applicant's

or

current

exam/inquiry indicate that the applicant or employee

employee's

medical

not meet its

physical qualification standard,

does

Glatfelter denies the otherwise

Case 1:15-cv-01881-YK

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Filed 09/29/15

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31. Stevens' monocular vision

substantially

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limits him in

Page

major life

including seeing and/or in major bodily functions, including

compared to

most

people

in the

8 of 15

activities

ocular functions,

as

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

record of disability

as

defined

by the

ADA.
34. In

refusing

defined

Stevens

employment,

Glatfelter

regarded

by the ADA, including by subjecting him to

because of his actual

35. Stevens has

or

an

as

disabled

as

employment action

perceived physical impairment.

significant experience operating PITs, and, notwithstanding his

monocular vision, has

duties for

Stevens

employers

safely and effectively operated PITs

other than

as

part of his job

Glatfelter, both before and after his application

with Glatfelter.
36. On

or

about

February 19, 2010,

employment as

completion of its

Trainee at its

Glatfelter offered Stevens conditional

Spring Grove facility, subject to

medical examination and satisfaction of its

qualification standard.

successful

physical

Case 1:15-cv-01881-YK

37. On

or

about March 4, 2010, Stevens

physical

exam

form and underwent

Glatfelter confirmed Stevens'

completed

or

Glatfelter's

9 of 15

pre-employment

through which

and record of prior treatment for

disability Stevens

did not

physical qualification standard for operation

allegedly required in the Trainee position,

39. On

Page

medical examination,

disability

38. Glatfelter concluded that due to his

Glatfelter's

Filed 09/29/15

Document 1

satisfy

of PITs,

job duty

and therefore could not be

about March 4, 2010, Glatfelter notified Stevens that it

same.

employed.

rescinding

was

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

42. Since at least

May 2009, and on

unlawful

employment practices

similarly

situated

at

through 40.

continuing basis,
its

Glatfelter has

Spring Grove facility against

post-offer applicants

qualified individuals with actual

15

and

and/or

employees who

are

perceived disabilities

engaged in
Stevens and

otherwise

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

Document 1

Case 1:15-cv-01881-YK

practices

include the

discriminating with respect to hiring, transfer,

privileges

advancement and other

of employment

on

using a physical qualification standard that screens

out

individuals with disabilities where the

be shown to be job-related for the

with business
c.

10 of 15

following:

terms, conditions and

b.

Page

12112(a), (b)(5), (b)(6); 12113(c). The unlawful employment

U.S.C.

a.

Filed 09/29/15

the basis of disability;

out or

tends to

screen

qualification standard cannot

position in question and consistent

necessity;

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

d.

necessity;

and

assuming

Glatfelter's

lawful

physical qualification standard is

otherwise

qualification standard, not conducting individualized inquiries of

individuals who fail

fact cannot

to meet

safely operate

accommodation(s) that,

the standard to determine whether

PITs and/or not

they in

considering or providing

if needed, would enable the individual to

operate PITs.

10

safely

Document 1

Case 1:15-cv-01881-YK

43.The unlawful

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Page

described in Count I resulted in loss of

employment practices

employment opportunities and/or adverse tangible employment actions

harms

and/or

against aggrieved individuals.

44.The unlawful

employment practices

individuals emotional and mental

contained in Count I caused

aggrieved

anguish, pain and suffering, stress,

and

humiliation and frustration.

45.The unlawful
malice

or

employment practices

reckless

contained in Count I

were

done with

disregard to the federally protected rights of the aggrieved

individuals.
Count II.
46. EEOC

hereby incorporates paragraphs

47. Since at least

unlawful

May 2009,

and

employment practices

employees

who

were

administration of the

a.

at

through 40.

continuing basis,
its

Glatfelter has

engaged in

Spring Grove facility against current

subjected to medical

exams

and/or

inquiries

as

part of the

physical qualification standard for positions involving

PITs in violation of Section

unlawful

on a

15

102(d)(4)(A),

42 U.S.C.

12112(d)(4)(A).

The

employment practices include the following:

requiring employees seeking employment

operation of PITs

to

submit

to a

medical

in any

exam

position involving

and/or

inquiry that cannot

be shown to be job-related and consistent with business

11

necessity.

Case 1:15-cv-01881-YK

48.The unlawful
malice

employment practices

reckless

or

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Page

contained in Count II

12 of 15

were

disregard to the federally protected rights

done with

of the

aggrieved

individuals.
PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

Grant

A.

assigns,
in

permanent injunction

and all persons in active concert

disability discrimination, including,

unlawful

reasonable

Grant

assigns,

officers,

participation with them,

or

but not limited to:

failing to

conduct individualized

successors,

from

engaging

utilizing overly broad

inquiries

decisions

on

and

the

and consider

accommodations, if necessary; and any other employment practice that

discriminates
B.

its

physical qualification standards; making employment

basis of disability;

in

enjoining Glatfelter,

on

the basis of disability in violation of the ADA.

permanent injunction

enjoining Glatfelter,

and all persons in active concert

or

its officers, successors,

participation with them,

from

engaging

disability discrimination, including, by subjecting current employees to unlawful

medical
C.
that

exams

and/or

inquiries

in violation of the ADA.

Order Glatfelter to institute and carry out

policies, practices,

provide equal employment opportunities to qualified

disabilities, that prohibit the

use

of unlawful

individuals with

physical qualification standards,

prohibit Glatfelter from subjecting employees to unlawful medical

12

and programs

exams

that

and/or

Case 1:15-cv-01881-YK

inquiries,

Document 1

Filed 09/29/15

Page

13 of 15

and that eradicate the effects of its past and present unlawful

employment practices.
D.

offer

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

applicants

and

employees

described in Count I whole

by providing

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

appropriate

prejudgment interest,

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

relief necessary to eradicate the effects of its unlawful

including but not

limited to

employment practices,

instatement, promotion and/or transfer,

or

front pay in

lieu thereof.
E.

offer

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

applicants

compensation

and

employees

for past and future

employment practices
F.

offer

described in Count I whole

pecuniary

losses

by providing

resulting from the unlawful

described above, in amounts to be determined at trial.

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

applicants

and

employees

compensation for past and

described in Count I whole

future

by providing

non-pecuniary losses resulting

from the unlawful

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

mental

anguish,

amounts to

G.

loss of enjoyment of life, and other

non-pecuniary losses,

in

be determined at trial.

Order Glatfelter to pay Stevens and the class of similarly situated

13

post-offer

Case 1:15-cv-01881-YK

applicants

and

Document 1

employees described

and reckless conduct described

Filed 09/29/15

in Count I

above, in

14 of 15

Page

punitive damages

for the malicious

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

jury trial

on

all

questions

of fact raised

by

its

Complaint.
FOR: EEOC
P. DAVID LOPEZ
GENERAL COUNSEL

JAMES L. LEE
DEPUTY GENERAL COUNSEL

GWENDOLYN YOUNG REAMS

ASSOCIATE GENERAL COUNSEL
DEBRA M. LAWRENCE

Regional Attorney
MARIA MOROCCO

Supervisory Trial Attorney

THOMAS RETHAGE (PA liZr 203524)
Senior Trial Attorney
EEOC Philadelphia District Office
801 Market Street, Suite 1300
Philadelphia, PA 19107
14

Case 1:15-cv-01881-YK

Document 1

Filed 09/29/15

Page

15 of 15

Phone: 215-440-2683
Fax: 215-440-2848
Email: thomas.rethage@eeoc.gov
Fed Bar No. 96035
Petition for Special Admission Forthcoming

/s/ Tanisha R. Wilburn

TANISHA R. WILBURN (NC Bar
Trial Attorney

38589)

EEOC Washington Field Office

131 M Street, N.E. Suite 4NWO2F
Washington, D.C. 20507
Phone: 202-419-0712
Fax: 202-419-0739
Email: tanisha.wilburn@eeoc.gov
Fed Bar No. 19271
Petition for Special Admission Forthcoming

ATTORNEYS FOR PLAINTIFF

15

Case 1:15-cv-01881-YK
JS 44 (Rev. 12112)

Filed 09/29/15

Document 1-1

1 of 1

Page

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither
replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided 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 of Court for the
of
the
civil
docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
initiating
purpose

I. (a) PLAINTIFFS
U.S. Equal Employment

(b) County

DEFENDANTS

Opportunity Commission

P.H. Glatfelter

of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)

(IN U.S.
NOTE:

(C) Attorneys (Firm Name, Address, and Telephone Number)

Tom Rethage, Senior Trial Attorney
801 Market St., Suite 1300, Philadelphia, PA 19107
215-440-2683
II. BASIS OF JURISDICTION (Place an
tg I

U.S. Government

CI 3

PA

IN LAND CONDEMNATION CASES, USE THE LOCATION OF

THE TRACT OF LAND INVOLVED.

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff
and One Box for Defendant)
(For Diversiry Cases Only)
PTF

County.

ONLY)

Attorneys (IfKnown)

"X" in One Box Only)

Federal Question
(U.S. Government Not

Plaintiff

YOTk

PLAINTIFF CASES

Citizen of This State

Party)

CI 1

DEF

PTF
I

Incorporated

or

Principal Place

DEF

CI 4

0 4

of Business In This State

0 2

U.S. Government
Defendant

0 4

Diversity
(Indicate Citizenship ofParties in Item III)

Citizen of Another State

0 2

Incorporated and Principal

0 5

0 5

Citizen or Subject of a

0 3

Foreign Nation

0 6

0 6

Place
of Business In Another State

Foreign Country

IV. NATURE OF SUIT (Place an

"X" in One Box Onlv)

i'EN

t TS

O
in
O
O
O

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment

PERSONAL INJURY
0 310 Airplane
0 315 Airplane Product
0 320

Liability
Assault, Libel &

& Enforcement ofludgment

Slander
O 151 Medicare Act
0 330 Federal Employers'
O 152 Recovery of Defaulted
Liability
Student Loans
0 340 Marine
0
Marine
Product
345
(Excludes Veterans)
O 153 Recovery of Overpayment
Liability
of Veteran's Benefits
0 350 Motor Vehicle
O 160 Stockholders' Suits
0 355 Motor Vehicle
O 190 Other Contract
Product Liability
O 195 Contract Product Liability
0 360 Other Personal
O 196 Franchise
Injury
0 362 Personal Injury
Medical Malpractice
REAL PROPERTY
CIVIL RIGHTS

0
0
0
0
0
0

210 Land Condemnation

220 Foreclosure
230 Rent Lease &
240 Torts to Land

Ejectment

245 Tort Product Liability

290 All Other Real

Property

0
0
0
0

440 Other Civil Rights

441 Voting
442 Employment
443 Housing/
Accommodations
Ig 445 Amer. w/Disabilities

Employment
0 446 Amer. w/Disabilities
Other
0 448 Education

V. ORIGIN (Place an

)31

Original
Proceeding

"X" In One Box

PERSONAL INJURY
0 365 Personal Injury
Product Liability
0 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
0 368 Asbestos Personal
Injury Product

0 625 Drug Related Seizure

of Property 21 USC 881
0 690 Other

CY

7 PkOPEKTYRIGHTS,
0 820 Copyrights
0 830 Patent
0 840 Trademark

LABOR
Liability
PERSONAL PROPERTY 0 710 Fair Labor Standards
0 370 Other Fraud
Act
0 371 Truth in Lending
0 720 Labor/Management
0 380 Other Personal
Relations
0 740 Railway Labor Act
Property Damage
0 385 Property Damage
0 751 Family and Medical
Product Liability
Leave Act
0 790 Other Labor Litigation
PRISONER PETITIONS
0 791 Employee Retirement
Habeas Corpus:
Income Security Act
CI 463 Alien Detainee
0 510 Motions to Vacate
Sentence

0 530 General
0 535 Death Penalty
Other:
0 540 Mandamus & Other
0 550 Civil Rights
0 555 Prison Condition
0 560 Civil Detainee
Conditions of
Confinement

AN

0 422 Appeal 28 USC 158

C1 423 Withdrawal
28 USC 157

IT

375 False Claims Act

400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and

Corrupt Organizations

SOCIAL SECURITY
0
0
0
0
0

811; R STA

0
0
CI
0
0
0
CI

861 HIA (1395ff)

862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SS1D Title XVI
865 RSI (405(g))

0 480 Consumer Credit

0 490 Cable/Sat TV
CI 850 Securities/Commodities/

Exchange
0
0
CI
0

890 Other Statutory Actions

891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act

FEDERAL TAX SUITS

0 870 Taxes (U.S. Plaintiff
or

Defendant)

0 871 IRSThird Party

26 USC 7609

0 896 Arbitration
0 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
0 950 Constitutionality of
State Statutes

IMMIGRATION
462 Naturalization Application
0 465 Other Immigration
Actions

Only)

0 2 Removed from
State Court

0 3

Remanded from

0 4 Reinstated

Appellate Court

Cite the U.S. Civil Statute under which you

or

Reopened
are

0 5 Transferred from
Another District
(spectb)

0 6

Multidistrict

Litigation

filing (Do not citejurisdictional statutes unless diversity):

ADA 42 USC 12101, et. seq.

VI. CAUSE OF ACTION Brief
description of cause:
Disability discrimination including, inter alia: qualification standards, failure to accommodate, exams/inquiries
VII. REQUESTED IN
El CHECK IF THIS IS A CLASS ACTION
CHECK YES only if demanded in complaint:
J3EIVIAND S
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
Yes
0 No
Oe7e4,
7r/a/ JURY DEMAND:

114c., 7&

VIII. RELATED
IF ANY

CASE(S)

(See instructions):

DATE

2LZ4127/.5.

JUDGE

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

29-

FOR OFFICE USE ON Y

RECEIPT

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE