A lawsuit involving a former executive who claims he was fired by South Pacific Petroleum Corp. for being overweight has apparently been settled. However the’s former executive’s lawyer would not confirm nor deny the existence of such a settlement. Meanwhile the District Court of Guam has scheduled a hearing on SPPC’s motion for summary judgment for July 8 and a trial date for July 12.
James B. McDonald Jr. former vice president and general manager at SPPC; on Nov. 12 2002 sued SPPC; Brian Y. Suhr president and chief executive officer Michael S. Hahm executive vice president’ and Sang Yeon Hahn a majority shareholder in SPPC and a resident of California. McDonald alleges they discriminated against him.
Suhr said “SPPC has denied liability in the McDonald case and the matter has been resolved. SPPC works hard at being a good corporate citizen and engages in sound and reasonable emplyment practices. SPPC tries its best to hire locally and the whole of our work force reflects the ethnic diversity of the island. We are proud of our employees and the relationship we have with them.”
William Gavras attorney and partner in the law firm of Gorman & Gavras Law Offices who represents McDonald would neither confirm no deny that a settlement had been agreed upon. “I am not denying what he said but I won’t comment.”
SPPC is represented by G. Patrick Civille attorney and partner in the law firm of Teker Civille Torres & Tang PLLC.
An amended complaint filed by McDonald in U.S. District Court reads in paragraph XVIII “On or about June or about August 2001 defendant Hahm said that Guam had nobody who could do the work that was required and that people in the states were better and did not have to be paid as much as Guamanians; defendant Hahm further stated that Guamanians had been spoiled and did not have the work ethic that mainland people had; that such negative Pacific Islander traits were the reason why Koreans were so successful on Guam.”
Section XX of the complaint filed by McDonald says “Plaintiff during the course of employment was informed that he would be fired if he did not meet defendant’s South Pacific Petroleum Corp’s Hahn’s Suhr’s and Hahn’s [Hahm’s] weight qualifications in that by his appearance he appeared to be overweight. Plaintiff was not originally hired based on weight considerations. Defendants South Pacific Petroleum Corp. and Hahn have a policy of not employing anyone who appears overweight. This policy has a disparate impact on Pacific Islanders in that these individuals are associated by defendants and all of them as being fat lazy inefficient and expensive to employ. This disparate impact constitutes discrimination based on race color and ethnic origin in violation of 42 USCA § 2000e et seq.”
The documents go on to state in paragraph XXI that on March 2001 Hahn told McDonald and Hahn [Hahm] and Suhr “that if any one of them did not lose weight and quit smoking tobacco that they would be fired. Defendants Suhr and Hahm are Koreans and on information and belief each of these two defendants are still employed by South Pacific Petroleum Corp. and continue to smoke tobacco.”
The defendants in the case did not have a detailed response to XVIII paragraph except to state “Denies the allegations in paragraph XVIII”. The same response is given for paragraphs XX and XXI. Throughout the answer to McDonald’s complaint the document reads “Denies the allegations in paragraph”.
However number “39” of the answer to McDonald’s complaint read “To the extent plaintiff alleges that criteria utilized by SPPC affected employment opportunities of plaintiff’s race ethnic origin or color SPPC denies that such criteria adversely affect the employment opportunities of persons of plaintiff’s race ethnic origin or color. Any criteria utilized by SPPC were adopted and applied in good faith and are directly and manifestly related to bona fide business purposes of SPPC.”
According to SPPC McDonald filed with the Equal Employment Opportunity Commission but did not include allegations in his amended complaint with the court. “The amended complaint alleges illegal conduct that was not alleged in the charge filed with the EEOC and the allegations reasonably could not be expected to flow from any investigation by the EEOC ” the document stated. The defendants also alleged that the practices McDonald is alleging occurred more than 180 days before the plaintiff filed the charge with the EEOC. The defendant’s answer also reads “SPPC exercised reasonable care to prevent and correct promptly any harassing behavior alleged in the amended complaint and plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities provided by SPPC to avoid harm otherwise.”
McDonald in his amended complaint is asking the court to order SPPC Hahm Suhr and Hahn to institute affirmative action programs that would provide “equal employment opportunities” to Pacific islanders. He is also asking for an award for damages related to the alleged unlawful discrimination mental anguish personal suffering professional embarrassment and public humiliation in an amount to be proven at trial. McDonald is also seeking punitive damages related to Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. The plaintiff is also looking for the court to have the defendants pay him for loss of revenue including back pay future earnings and pension adjustment. McDonald is also asking the court to retain jurisdiction of SPPC until the company fully complies with all orders.