Two Texas Energy Corporations Sued By The EEOC For Disability Discrimination

DynMcDermott, ENGlobal Violated the ADA; DynMcDermott Is Also Charged With Violating the Age Discrimination in Employment Act

HOUSTON – Twenty years after the Americans With Disabilities Act ("ADA") was enacted, the Houston District Office of the U.S. Equal Employment Opportunity Commission (EEOC) has filed two separate lawsuits to enforce the ADA, demonstrating the on-going relevance of and need for the law in today's workplace. The ADA prohibits discrimination against employees and employment applicants with disabilities, including those who are regarded as disabled by their employers, and those who associate with persons who are disabled.

The lawsuits, filed today in the United States District Court for the Southern District of Texas, Houston

Division, address various unlawful practices by these two employers which are illustrative of the broad and necessary protections afforded by the ADA. In addition, one of the employers, DynMcDermott Petroleum Operations Company ("DynMcDermott") is also alleged to have violated the Age Discrimination in Employment Act ("ADEA"). The ADA and the ADEA are two of the civil rights/employment discrimination statutes the EEOC is charged with enforcing.

In the suit against ENGlobal Engineering, Inc. ("ENGlobal") (Civil Action No. 4:10-cv-XXXX), the EEOC alleges that the company terminated the employee, Jeff Rose ("Mr. Rose"), because it regarded him as being disabled. ENGlobal is a publicly traded corporation that provides engineering and professional services to the energy sector.

According to the EEOC, Mr. Rose had worked for ENGlobal as a safety supervisor for approximately two weeks when, unbeknownst to him, he began to develop multiple sclerosis ("MS") symptoms that did not debilitate nor substantially limit him. Mr. Rose informed his manager of the symptoms and kept him informed of the conversations he had with his doctors as they tried to ascertain what was wrong with him. As the manager learned more about Mr. Rose's condition and realized that he faced a potential MS diagnosis, the manager searched for a replacement and urged Mr. Rose to take medical leave despite the fact that he could continue working. After taking medical leave at his manager's insistence, Mr. Rose presented the company with a doctor's note stating that he had clearance to return to work. Although his position was available, ENGlobal's human resources manager falsely told Mr. Rose that it was not. Further, although the human resources manager then told Mr. Rose that ENGlobal would try to find him another position within the company, it took no such action. Three weeks later, ENGlobal hired another individual for Mr. Rose's position. It is the EEOC's position that ENGlobal's management violated the ADA by incorrectly and impermissibly viewing Mr. Rose as substantially limited in his ability to perform the work of any job within the company.

The ADA was also violated by DynMcDermott when the company failed to hire an applicant for employment, the EEOC alleged in the lawsuit filed against this employer for actions which occurred at its Winnie, Texas facility (Civil Action No. 4:10-cv-XXXX). The EEOC also maintains that DynMcDermott's actions violated the ADEA. According to the lawsuit, DynMcDermott is a privately-held corporation that provides maintenance and operations services for the Strategic Petroleum Reserve managed by the U.S. Department of Energy. The EEOC alleges that the applicant and employee, Phillip ("Mike") Swafford ("Mr. Swafford"), applied with DynMcDermott for a position he had previously held with the company. He was interviewed by and recommended for the position by both his former supervisor and the manager in charge of hiring for the position. Nonetheless, the facility's director, who had authority over both the supervisor and the hiring manager, stated to them and others, on at least two occasions, that Mr. Swafford should not be hired because of his age, then 56 years, and his wife's cancer, which the director simply assumed would interfere with Mr. Swafford's ability to perform his job duties. The EEOC alleges that this assumption and DynMcDermott's unwillingness to hire Swafford because of his age and his wife's cancer violated both the ADA and the ADEA. DynMcDermott ultimately hired a 35-year-old applicant with no prior experience with the company for the position.

R. J. Ruff, Jr., District Director of the EEOC's Houston District Office, said: "A broad range of practices can violate the employment discrimination laws we are charged with enforcing. As the ADA celebrates its twentieth anniversary, we unfortunately still find instances of disability discrimination in the workplace which must be addressed and remedied. Likewise, age discrimination in the workplace cannot be tolerated."

"Employers in all industries must be held accountable for knowing and complying with the law. As long as employers continue to violate the laws the EEOC is charged with enforcing, employees will continue to need EEOC intervention," said Jim Sacher, the EEOC's Regional Attorney.

The EEOC filed the lawsuits after conciliation efforts to reach a voluntary settlement with each employer were unsuccessful. In each lawsuit, the EEOC is seeking a permanent injunction prohibiting the relevant company from engaging in employment discrimination, as well as other non-monetary relief to address the unlawful practices. The EEOC is also seeking back pay, compensatory damages, punitive damages or liquidated damages, and other relief.

Anyone who believes he or she has been subjected to a discriminatory employment practice is encouraged to contact the EEOC's Houston District Office, which is located in downtown Houston on the sixth floor of the Mickey Leland Federal Building at 1919 Smith Street. Additional information about the EEOC is available on the agency's web site at www.eeoc.gov.