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1999
EEOC 1

"The EEOC doused expectations that it would take prompt action on the hundreds of age discrimination complaints about conversions of traditional pension plans to cash balance plans. The issues are too complex, and disagreement over interpretation of current age discrimination law makes it difficult for the Equal Employment Opportunity Commission to determine whether the Age Discrimination in Employment Act protects older workers affected by the conversions, agency Chairwoman Ida L. Castro wrote in a letter earlier this month to Sen. Charles Grassley, R-Iowa. Mr. Grassley is chairman of the Senate Special Committee on Aging. 'It would be premature for the Commission to issue guidance at this point in time as we need to review a myriad of issues arising from the hundreds of charges recently received,' Ms. Castro wrote."

As we have said, we are not looking for a fast settlement; we are looking for a just settlement. We have full confidence that the EEOC will thoroughly investigate all ramifications involved in this matter.

It was our pleasure to meet Ida Castro, EEOC Chairwoman and hear her speech on 4/28/2000. She was the guest speaker at the American Bar Association's luncheon at Hilton University Place in Charlotte North Carolina.

Ms. Castro has served as EEOC Chairwoman since 1998 when she was approved by the full Senate. Her main agenda has been improved effectiveness of the litigation process. She has achieved much in this area. In 1995, there was a backlog of 111,000 charges. This backlog was whittled down to 52,000 in 1998. It used to take 400 to 500 days to reach a charge resolution. Now the average resolution time is 310 days. They used to have only 700 investigators. The staff has been increased by 450 people. All charges used to have to be investigated, even those with no merit. Now, the charges are prioritized by either "A", "B", or "C" categories. "A" category charges receive the most attention. "B" category charges are referred to the mediation process. The system is no longer clogged with charges with no merit. Now, charges are reviewed by senior staff earlier. "C" category charges, which are the least significant, are usually referred to the mediation process within 10 days and are usually resolved within 90 days. 5,000 charges have been resolved within 3 months through mediation, with a 65% success rate. A total of $58 million has been has been recovered for clients. Due to the plain language used on the EEOC web site, attorneys may experience less billable hours.

This is the 35th anniversary of the EEOC. One would think that the number of charges would be decreasing, but they are increasing. Racial and sexual harassment charges have doubled in the last 10 years. Retaliation charges have doubled in the last 8 years.

Ms. Castro visited some groups and individuals in South Carolina before coming to North Carolina. She said that she heard employer harassment accounts that would "Make your hair stand on end." 8 racial harassment cases have recently been filed in court. These are not discrimination cases, but harassment cases. These are not merely charges, but cases filed in court.

She said that no worker should have to submit to an employer's sexual advances just to maintain a job to feed their family. And, no worker should have to go to work in fear.

She said a charge has been filed because of an employer actually spitting on the employees! She said that it is a "Different day at the EEOC." Treating workers with indignity, disrespect, humiliation, and causing fear will bring about consequences.

She said that there is "evil in the hearts" of certain pockets of individuals. If employers practice evil, then they must pay. If they practice more evil, they will have to pay more and more, until they have nothing left to pay with. She said that the EEOC intends to go after the bad actors.

Ms. Castro said that 6 moths ago there were no cash balance charges. Now, cash balance plan charges compose 5% of their work load.

We specifically asked her about the age discrimination charges against Duke Energy Corporation. Of course, since the investigation is ongoing, she could not comment. But, it did not hurt for the reporters present to hear the question. Everyone needs to know that the issue is not going away.

For those who may think that this account may have been "spiced up" to be more inflammatory, consider this: We actually omitted the details of some of the employer harassment cases. We want to put all the truth out. But, some of the more graphic details were much too depressing to even report. Nothing has to be spiced up; the facts speak loudly enough on their own.

The EEOC Basics workshop presented by the American Bar Association was from 8:30 AM until 5 PM on 4/28/2000. Practicing attorneys conducted each session.

One speaker mentioned this test to any legal matter: "Is there a smell to it?"

That one question speaks volumes. Do you think that Duke's senior management ever asked this question about the cash balance conversion? They knew full well that they would be breaking promises made to employees for decades. They knew that they did not intend to present the facts in a forthright manner. Yet, they made the conversion anyway! Does the Duke Energy cash balance conversion have a smell to it? Yes! It stinks to high heaven!

One speaker said that there were more cases of employer discrimination than all the attorneys in the U. S. could handle.

That is a rather depressing fact. One that employers bank on. No matter what an employer does to you, if you cannot obtain legal counsel, you will never receive justice. That is all the more reason to take advantage of the EEOC filing opportunity.

Another speaker said that by the time an employee consults an attorney, they have endured a lot at the hands of their employer – they are at the end of their rope. Employees do not want to be in court. Employees do not want the stress of litigation. They want to get on with their lives. Employees will generally only take legal action if the situation becomes intolerable.

This is another fact that employers take full advantage of. People are just not going to spend the time and energy to pursue litigation, unless there is a real problem. If one person seeks legal help due to an employer’s action, there is likely a problem. If several employees seek legal help, there is definitely a problem with the employer. When hundreds or thousands of employees seek legal help, something is rotten to the core!

One speaker said that in employer cases, the burden of proof is on the employer. Some employers have difficult accepting this. They feel that because they are an "at will" employer that they can just do whatever they want. In employer cases, it is assumed that if an employee says it, it is true.

If you dig long enough and hard enough, you may find that you actually have an advantage here and there.

One speaker said: "justice delayed is justice denied." He spoke of a case filed in 1969. It came to trial in 1972. He became involved in 1984. Settlements started to be paid in 1999! Many of the plaintiffs were dead! The money went the their estates.

Another speaker/attorney said: "99% of the attorneys give the rest a bad name." (He said it, we didn’t.)

One speaker said that in North Carolina, you have 180 days from the discriminatory act to file an age discrimination charge.

Some feel that in the case of Duke's cash balance plan, the date of the discriminatory act is today. If you are still employed, you are discriminated against daily.

A speaker said that there is a 54% success rate for employer discrimination cases, with an average settlement of $146,000.

We will take those odd. Consider that the money has already been taken from us. The only way we can truly lose is to do nothing! To do nothing is to say: "You took my retirement money, but I don't care (please, take something else)."

One plaintiff attorney won a $600,000 judgement against Duke. An even greater judgement was obtained against a construction company. Four employees were terminated. Only one employee filed a discrimination charge. The jury awarded him over two million dollars. The attorney said that jurors expect a fair workplace. He said that employers demand loyalty from the employees, but show no loyalty to the employees. He said that executives who are given power, will abuse that power in many cases. They will always pick on the weakest people. Jurors will punish employers for this.

One speaker said to use experts to calculate the figures for pension plans. He said that most people are not going to come up with numbers that make any sense.

We have taken this position all along. Do not knock yourself out trying to calculate something designed to be impossible for you to calculate. The EEOC will do the necessary calculations. You do not need exact figures to file an age discrimination charge. Only the belief that you were discriminated against is sufficient. The EEOC will take it from there.

"The EEOC's Charlotte District Office, which has an extensive outreach and education program that reaches workers and businesses in outlying communities, has jurisdiction over federally filed employment discrimination charges in both North and South Carolina. In addition to the Charlotte office, EEOC has offices in Raleigh and Greensboro, N.C., and in Greenville, S.C. A total of approximately 2,200 charges were filed with these offices in the first six months of EEOC's current fiscal year, which began October 1, 1999."

There is no doubt that a large percentage of the charges are because of Duke Energy’s cash balance plan. Keep the charges coming in people! The EEOC is in a position to do more than say: "We are not considering any changes; for more information contact HR-24 (blah, blah, blah)."

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We were in contact with the EEOC several times last week, by phone and in person. The U. S. Equal Employment Opportunity Commission’s Washington office has taken an interest in the age discrimination charges against Duke Energy Corporation. At their request, all the information gathered has been sent to Washington. The EEOC's Washington attorneys will spearhead the age discrimination investigation. So much for the doom and gloomers who predicted that the EEOC would not have sufficient resources to conduct the investigation. So much for those who wailed that the EEOC was not taking enough interest in the charges. If you have filed a charge, it will be investigated. If you have not filed a charge yet, the window is still open as of last week. If no charge is filed, it is assumed that you are completely happy with the cash balance conversion and your opening balance and your conversion will not be investigated. The EEOC can only investigate if you ask them to.

One employee asked why he had not seen any newspaper announcements about the charges. The Charlotte Observer did carry the story of the EEOC/Duke employees meeting last year. The EEOC has restrictions against "aggressively pursuing" clients. It is completely up to the employees to get the word out. Make sure that your coworkers know of their options. What better favor can you do for a coworker than to save their pension?

• Duke Energy employees can file age discrimination charges with the EEOC due to the cash balance conversion.

• The EEOC is accepting charges from employees of ANY age.

• As of now, only employees who file charges will have their conversion investigated.

• 1-800-669-4000 will connect you with the closest EEOC office.

• It costs nothing to file an age discrimination charge.

If you could find a private attorney to challenge Duke Energy in court, the cost would be prohibitive, to say the least! Do not throw this opportunity away.

After their customary stonewalling period, Duke Energy began providing cash balance conversion information to the EEOC. Hopefully, Duke will provide the EEOC with more useful information than what was given to the employees. If not, the EEOC will end up with a stack of cartoon books! But, if the information provided is not adequate, the EEOC will be back for more. And, they will get it. They will get it the easy way or the hard way. But, they will get it. This cat and mouse game could go on for some time. Remember, we are not looking for a quick resolution. We are looking for a just resolution. There has been much complaining about the cash balance conversion among employees. All the complaining, by itself, is worth exactly zero. The simple act of filing an age discrimination charge could be worth hundreds of thousands of dollars to you, depending upon your situation. If you are waiting to file an age discrimination charge "when you happen to be near an EEOC office," or waiting for the temperature and moon signs to be just right, you may lose out. This is important enough to drop whatever you are doing now, and take care of. You will then have the peace of mind of knowing that you have done all you can do to salvage your retirement future. That peace of mind alone is well worth the effort. Hundreds of hours have been spent in research, meetings with attorneys and government officials, and discussions with actuaries to determine our best course of action for pension justice. The consensus is that the age discrimination charge is the avenue to take. It is available now and there is no cost. People are bending over backwards to help us if we will only accept it. The EEOC has waived the filing time limit and age limit for us; don’t hold out for limousine service to their office. If coworkers receive justice for taking this small effort, and you do not, that would indeed be a bitter pill to swallow. It is not our wish for any employee to be caught in that position, but we can only show where the water is to be found. Those who refuse to drink will likely remain thirsty. 1-800-669-4000 will connect you to the closest EEOC office. Call and ask to speak to an investigator. Get their address and pay them a visit. It will only take a small amount of your time. It is really just that easy.