Case 1:23-cv-00848-KG-LF Document 7 Filed 09/29/23 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

v. Case No. 1:23-cv-00848-KG-LF

PUBLIC SERVICE COMPANY OF NEW MEXICO

and
PNMR SERVICES COMPANY,

Defendants.
JOINT MOTION FOR ENTRY OF CONSENT DECREE

The Parties, through their respective counsel jointly move for entry of the Consent

Decree, filed as Attachment 1 to this motion, and for administrative closure subject to the terms

of the Consent Decree. The Consent Decree will be submitted electronically on this September

29, 2023 to the Honorable Kenneth Gonzales for approval. The Parties stipulate that this Consent

Decree is fair, reasonable, and equitable, and does not violate the law or public policy. All parties

have agreed to electronic signatures where necessary.

As grounds for this motion, the Parties state as follows:

1. The Consent Decree was achieved after negotiations between the Parties and has been

signed by all Parties and their counsel.

2. The Parties believe that all issues, claims and potential claims in this case are

resolved by the Consent Decree, including all claims for monetary, injunctive, and equitable

relief of the charging parties named in the Complaint, any alleged aggrieved individuals and the

Equal Employment Opportunity Commission.

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3. The Parties stipulate that this Consent Decree is fair, reasonable, and equitable; and

does not violate the public interest.

4. Each Party shall bear its own attorneys’ fees and costs.

5. Upon entry of the Consent Decree as an Order of the Court, the Parties request an

administrative closure of this case pursuant to Fed. R. Civ. P. 41(a)(2) which includes the parties

request for this Court to retain jurisdiction over the case during the two-year term of the Consent

Decree, subject to a Party’s request to reopen if an issue of noncompliance is raised regarding the

terms of the Consent Decree.

6. Upon conclusion of the two-year term of the Consent Decree, and if no compliance

issue is pending before the Court, the case will automatically be dismissed with prejudice.

WHEREFORE, the Parties respectfully request that the Court sign and enter the Consent

Decree, filed concurrently herewith, and administratively close the case subject to the terms of

the Consent Decree.

Respectfully submitted this __29___ day of September 2023,

s/ Jeff A. Lee_______________ s/ John K. Ziegler__________

Jeff A. Lee (Signed with written consent of defense
counsel)
Christina Vigil Frazier John K. Ziegler
Lucia Moran Jacqueline M. Woodcock
Equal Employment Opportunity Commission Conklin, Woodcock & Ziegler, P.C
Albuquerque Area Office 320 Gold Ave. SW; Suite 800
500 Gold Ave SW, Suite 6401 Albuquerque, NM 87102
Albuquerque, NM 87103 jkz@conklinfirm.com
jeff.lee@eeoc.gov

Counsel for Plaintiff Counsel for Defendant

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

1:23-cv-00848-KG-LF
Civil Action No. ______________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

v.

PUBLIC SERVICE COMPANY OF NEW MEXICO

and
PNMR SERVICES COMPANY,

Defendants.

CONSENT DECREE

I. RECITALS

1. This matter was instituted by Plaintiff, Equal Employment Opportunity

Commission (“Commission” or “Plaintiff” or “EEOC”), an agency of the United States

government, alleging that Defendants, Public Service Company of New Mexico and

PNMR Services Company (collectively “Defendants” or “PNM”), discriminated against

individuals with disabilities by failing to make reasonable accommodations to the known

physical or mental limitations of these otherwise qualified individuals with disabilities, by

terminating their employment because of their disabilities or perceived disabilities,

and/or because they needed reasonable accommodation(s), by refusing to consider

additional leave for employees beyond FMLA as a reasonable accommodation for

otherwise qualified individuals with disabilities to retain their current job positions, by

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utilizing discriminatory qualification standards, criteria and/or methods of administration,

and by refusing to assist in the reassignment of otherwise qualified individuals with

disabilities who were unable to perform their own jobs because of their disabilities or

perceived disabilities, and/or because they needed reasonable accommodation(s), all in

violation of the Americans with Disabilities Act. Defendants deny having implemented,

or engaged in, any unlawful practice or conduct alleged.

2. On February 2, 2016, Myron Charley filed a Charge of Discrimination with the

EEOC alleging that Defendants denied reasonable accommodation for his disability by

forcing him to return to work at 100% or be placed on unpaid leave. Subsequently,

three additional individuals – Erika Davis, Daniel Lopez, and Fredrick Kloeppel –

(referred to collectively as “Charging Parties”) filed charges of discrimination alleging

disability discrimination under the ADA, including denial of accommodation. Charging

Parties brought additional claims as part of their charges as well. All claims are being

resolved through this Consent Decree.

3. The Parties signatories hereto are the Plaintiff EEOC and the Defendants Public

Service Company of New Mexico and PNMR Services Company.

4. The EEOC and Defendants (collectively, the “Parties”), desiring to settle this action

by an appropriate Consent Decree (“Decree”), agree to the jurisdiction of this Court over

the Parties and the subject matter of this action, and agree to the power of this Court to

enter a Consent Decree enforceable against Defendants.

5. As to the issues resolved, this Decree is final and binding upon the Parties and

their successors and assigns.

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6. This Decree does not constitute an adjudication on the merits of the EEOC’s case,

and it shall not be construed as an admission by Defendants of any discriminatory

conduct, which Defendants expressly deny.

7. For the purpose of amicably resolving disputed claims, the Parties jointly request

this Court to adjudge as follows:

IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:

II. JURISDICTION

8. The Parties stipulate to the jurisdiction of the Court over the Parties and subject

matter of this action and have waived the entry of findings of fact and conclusions of law.

III. ISSUES RESOLVED

9. This Decree resolves all claims that were alleged in the above-captioned lawsuit

and constitutes a complete resolution of all of the Commission’s claims of unlawful

employment practices under the ADA, as amended, and any other claims that arise

from Charge of Discrimination Numbers 543-2016-00386 (filed by Myron Charley), 543-

2016-00486 (filed by Erika Davis), 543-2019-00203 (filed by Fredrick Kloeppel), and

543-2019-00214 (filed by Daniel Lopez), and all other Aggrieved Individuals who are

listed in Exhibit A attached hereto. In addition, this Decree constitutes a complete

resolution of all of the claims of unlawful employment practices under the ADA and

otherwise that were raised by all of the Charging Parties’ and the EEOC, based on the

set of facts in the investigations of the pending Charges of Discrimination, from Charge

Nos. 543-2016-00386 (filed by Myron Charley), 543-2016-00486 (filed by Erika Davis),

543-2019-00203 (filed by Fredrick Kloeppel), and 543-2019-00214 (filed by Daniel

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Lopez). The Aggrieved Individuals entitled to participate in this settlement consist of the

individuals, including Charging Parties, who were employed by Defendants at some

time during the period from January 1, 2014 to the present, as set forth in Exhibit A.

10. Defendants and their officers, agents, employees, successors, and all other

persons in active concert or participation with any of them, will not interfere with the

relief herein ordered, but shall cooperate in the implementation of this Decree.

IV. TERM AND SCOPE

11. The terms of this Decree shall apply to all of Defendants’ facilities in New Mexico.

12. The duration of this Decree shall be two years from the date of signing by the

Court.

V. MONETARY RELIEF

13. Judgment is hereby entered in favor of the Commission and against Defendants

according to the terms of this Decree.

14. Defendants shall pay $ 750,000.00 to be distributed to Charging Parties and other

Aggrieved Individuals as set forth in Exhibit A as determined by the EEOC.

15. At the request of the EEOC, the monetary awards shall be allocated to back pay

and to compensatory damages in the amounts set forth in Exhibit A. The Parties agree

that the amounts allocated to back pay and compensatory damages are fair and comply

with the Internal Revenue Code considering the facts and circumstances involved in this

settlement.

16. Defendants will not condition the receipt of individual relief upon any Charging

Party’s or Aggrieved Individual’s agreement to: (a) maintain as confidential the terms of

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this Decree or the facts of the case; (b) waive his or her statutory right to file a future

charge with any federal or state anti-discrimination agency; or (c) promise not to apply

or reapply for a position at any of Defendants’ operations or facilities.

17. To each Charging Party and Aggrieved Individual receiving payment, Defendants

shall issue an IRS Form W-2 for the back pay component of the monetary award, and

an IRS Form 1099 for the compensatory damages component of the monetary award.

Defendants shall be responsible for making required tax withholdings from the backpay

component of settlement awards. In addition to the settlement amount distributed to

eligible Aggrieved Individuals and Charging Parties, Defendants are responsible for

paying the employer’s share of payroll taxes on the backpay component of settlement

awards and the Charging Parties and Aggrieved Individuals are otherwise responsible

for paying their applicable taxes on their settlement awards. See Section VII below.

VI. DISTRIBUTION PROCEDURE

18. Final Distribution List for Charging Parties and Aggrieved Individuals.

Within ten (10) business days of the Court’s entry of this Decree, the EEOC will provide

Defendants with a Final Distribution List for Charging Parties and Aggrieved Individuals,

indicating payment amounts and mailing addresses for the Charging Parties and

Aggrieved Individuals. See Exhibit A.

19. Within ten (10) business days after entry of this Decree, the EEOC will provide

Defendants signed copies of appropriate tax forms for back pay (W4) and

compensatory damages (W9) as well as a signed release (see Exhibit D) for each

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Charging Party and Aggrieved Individual receiving benefits under this Consent Decree

as identified in Exhibit A.

20. Defendants shall mail the payments in accord with the Final Distribution List

(Exhibit A) from the EEOC to the Charging Parties and Aggrieved Individuals within ten

(10) business days of receiving their signed Releases (See Exhibit D) and the

appropriate executed tax forms.

21. Copies to EEOC. Within ten (10) business days after payments are mailed to

payees listed in Exhibit A, the Defendants shall submit to EEOC a copy of the checks

issued.

VII. EEOC’S REPORTING REQUIREMENTS - IRS SECTIONS 162(F) AND 6050X

22. The EEOC may be required to report the fact of this settlement to the Internal

Revenue Service (IRS) under Section 162(f) and 6050X of the Internal Revenue Code

which allow for certain payments by employers to be deducted from the employer’s

taxes. If the EEOC is required to do so, the EEOC will provide the employer with a copy

of the 1098-F form that it will provide to the IRS. The EEOC has made no

representations regarding whether the amount paid pursuant to this settlement qualifies

for the deduction under the Internal Revenue Code. The provision of the Form 1098-F

by the EEOC does not mean that the requirements to claim a deduction under the

Internal Revenue Code have been met. Any decision about a deduction pursuant to the

Internal Revenue Code will be made solely by the IRS with no input from the

EEOC. The parties are not acting in reliance on any representations made by the

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EEOC regarding whether the amounts paid pursuant to this agreement qualify for a

deduction under the Internal Revenue Code.

23. The Defendants’ EINs are: Public Service Company of New Mexico, TIN 85-

0019030 (regarding M. Charley, D. Lopez, F. Kloeppel and Aggrieved Individuals listed

on Exhibit A); and PNMR Services Company, TIN 75-3172332 (regarding E. Davis).

24. The individuals at the employer to whom the EEOC should mail a copy of the

form 1098-F are: Paul Sanchez, Human Resources Manager, PNM Resources, Inc.

Albuquerque: Downtown – PNM Headquarters, 414 Silver Ave. SW, MS-0705,

Albuquerque, NM 87102; and Scott Seamster, Esq., Associate General Counsel, PNM

Resources Inc., Lewisville: Regional Office -TNMP Headquarters, 577 N. Garden Ridge

Blvd., Lewisville, TX 75067.

VIII. OTHER INDIVIDUAL RELIEF

25. Within ten (10) business days after the entry of this Decree, Defendants shall

provide Myron Charley, Erika Davis, Daniel Lopez, and Fredrick Kloeppel and

Aggrieved Individuals with a neutral letter of reference in the form attached as Exhibit B.

IX. EQUITABLE RELIEF

A. Injunctive Relief

26. Defendants, their officers, agents, employees, successors, and other persons in

active concert of participation with it, or any of them, are, for the duration of this Decree,

enjoined from engaging in any employment practice which discriminates on the basis of

disability in violation of the ADA.

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27. Defendants, their officers, agents, employees, successors, and other persons in

active concert or participation with them, or any of them, are, for the duration of this

Decree, enjoined from engaging in reprisal or retaliation of any kind against any person

because of such person’s opposition to any practice made unlawful under the ADA.

Defendants shall not retaliate against a person because such person brings an internal

complaint of discrimination with Defendants; because such person files or causes to be

filed a charge of discrimination with the Commission, or whose statements serve as the

basis of a charge; or because such person testifies or participates in the investigation or

prosecution of a violation of these statutes. Defendants shall not retaliate in any

manner against individuals identified as witnesses in this action or who assisted in the

investigation giving rise to this action. Nor shall Defendants retaliate against any such

persons identified as a witness or possible witnesses of discrimination in future

investigations or proceedings.

B. Anti-discrimination Policy

28. Within one hundred twenty (120) business days of the Court’s entry of this

Decree, Defendants shall review and revise its existing policies and procedures,

develop and implement new and/or revised policies and procedures as set forth below,

and otherwise as necessary to ensure equal employment opportunities are afforded to

employees with disabilities and to ensure that Defendants’ policy and procedures are

consistent with the ADA, including all attendant regulations, and terms of this Consent

Decree.

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29. Within one hundred twenty (120) business days of the Court’s entry of this

Decree, Defendants shall include the policies identified in Paragraph 28 in all versions

of manuals and policies issued by Defendants to employees.

30. Within one hundred twenty (120) business days of the Court’s entry of this Decree,

Defendants shall:

A. Ensure that Defendants have policies and procedures in place that

prevent managers and supervisors from making employment decisions based on

the disabilities of qualified employees or applicants which do not prevent them

from performing essential job functions with or without a reasonable

accommodation, including without limitation decisions regarding: (a) requests for

reasonable accommodations, including request for accommodation in any

physical testing to determine fitness for duty of an employee or prospective

employee; (b) employee requests to return to work after medical leave, and (c)

hiring, discharge, discipline, promotion, demotion, pay, work assignments, and

other terms and conditions of employment.

B. If necessary, modify Defendants’ existing policies to delete any reference

to “full duty” and expressly state that there is no “full-duty” policy or standard, and

that whether an employee is able to perform their essential job functions will be

determined through the interactive process and individualized assessment

provided in the Reasonable Accommodation policy.

C. If necessary, modify Defendants’ existing policies to include a description

of the consequences, up to and including discharge, that shall be imposed upon

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violators of the policy and an assurance of non-retaliation against persons and

witnesses who report to Defendants that they believe they or other employees

have been subjected to unlawful discrimination and/or denied reasonable

accommodations.

D. Provide written notice to PNM’s Third-Party Administrator(s) (“TPA”) for

FMLA, short-term disability and worker’s compensation within 30 days after the

policy review and revision requesting that the TPAs remind employees seeking

leave they administer to contact PNM’s HR Department and/or review PNM’s

policies, if additional leave or other accommodation is needed due to an

employee’s disability.

E. Notify all employees in writing within 30 business days after the policy

review and revision that Defendants do not have a “full-duty” policy and that its

policies, including its leave policy, are subject to exceptions as a reasonable

accommodation for disability, where appropriate.

F. Notify all employees in writing within 30 business days of the policy review

that Defendants do not have a policy whereby an employee must return to work

after twelve (12) weeks of absence due to their own disability or serious health

condition, or risk discharge, and that instead, Defendants will engage in an

interactive process with the employee, and make an individualized assessment

of the employee’s particular circumstances to determine whether additional leave

or other accommodation is appropriate and can be made.

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G. Notify all employees in writing within 30 business days of the policy review

that it provides reasonable accommodations for employees and employment

applicants with disabilities.

H. Within 30 business days of the policy review required under this Section

B, provide the EEOC with a copy of the revised policies and notices required

herein.

31. For duration of this Decree, should Defendants further amend their existing

policies relating to equal employment opportunities, the ADA, or the provision of

reasonable accommodation under the ADA, Defendants will notify the EEOC of the

amendment(s) at least thirty (30) business days before the implementation of the

modified policies.

C. Reasonable Accommodation Policies

32. Defendants shall maintain a written policy that addresses how reasonable

accommodations for disabilities will be provided during the course of employment,

which shall be modified as necessary to include the following minimum provisions:

A. a provision requiring that Defendants engage with employees in an

interactive process to make individualized determinations about

accommodations, as further detailed in Paragraph 33 below;

B. a provision ensuring that employees are not told that they will not be

allowed to return to work unless they are released to work without any medical

restrictions;

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C. a provision that informs employees who they should contact to request a

reasonable accommodation, including contact information for each such person.

33. The Reasonable Accommodation policy at a minimum shall require Defendants

to conduct and document the following individualized assessment and interactive

process steps:

A. Defendants shall meet and discuss reasonable accommodation with the

applicant or employee, including an explanation of potential accommodations

and the various considerations in the decision-making process.

B. Determine the applicant’s or employee’s abilities and limitations. This may

require information gathering from the employee’s medical provider, or

Defendants’ medical provider (at Defendants’ expense if using a provider, it

selected/retained).

C. Determine the duties of the job, based on a current job description shared

with the employee or applicant.

D. Determine which of the job duties the applicant or employee cannot do, or

needs help doing, because of their disability, and discuss with the applicant or

employee.

E. Determine whether the affected duties are essential or marginal duties,

based on standards articulated in ADA regulations and interpretive guidance

published at 29 C.F.R. § 1630.2(n) (regulation) and Appendix to Part 1630, §

1630.2(n) (interpretive guidance).

F. Reassign marginal duties, if needed.

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G. Research the potential accommodations that might enable the employee

to perform the essential functions. This may require Defendants to research and

gather information from sources such as the employee’s medical provider, Job

Accommodation Network (askjan.org), New Mexico Department of Vocational

Rehabilitation, and/or subject experts (e.g., Diabetes Foundation, Epilepsy

Foundation, etc.)

H. Discuss potential reasonable accommodations with the applicant or

employee.

I. Determine if the potential reasonable accommodation will actually enable

the employee to perform the essential functions of the job.

J. Discuss potential reasonable accommodations with the applicant or

employee.

K. Consider the viability of potential accommodation(s) and determine

whether there are any other difficulties or undue hardship the accommodation(s)

will cause to the operation of Defendants’ business.

L. Determine if there is a workable reasonable accommodation and offer it to

the applicant or employee.

M. If Defendants reject a requested accommodation, Defendants will explain

the reasons to the applicant or employee and document the reasons.

N. If no reasonable accommodation will enable a qualified employee to

perform essential functions of their own job, Defendants must consider and

discuss with the employee potential reassignment to another position that is then

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available or known at that time will be available within three months for which a

posting has been generated. (Should an appropriate position, at the same level,

or if not, at a lower level, not be immediately available, Defendants will discuss

options with the employee regarding their status in the interim, which options

may include unpaid leave (unless the employee has paid leave available) while

they wait for the position to become available.

O. If reassignment is considered, Defendants will document what jobs were

considered and what position, if any, was offered to the employee as a

reassignment. If an employee is reassigned to another position, the employee

will only be entitled to receive the pay associated with the new position not the

position the employee held previously.

34. If Defendants do not have a Reasonable Accommodation policy consistent with

the provisions of the preceding Paragraphs 32-33, Defendants shall develop this policy

within thirty (30) business days from the Court’s entry of this Decree.

35. Defendants shall develop and utilize a form to document each step in the

individualized assessment and interactive process, as set forth in Paragraph 33 above

and retain copies of all records documenting the process.

36. Within 60 business days of the policy review required under this Section C,

Defendants shall provide the EEOC with a copy of the revised policies and forms

required herein.

37. Within one hundred twenty (120) business days of the Court’s entry of this Decree,

Defendants shall include the policies in this subpart C in all versions of manuals and

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policies issued by Defendants Public Service Company of New Mexico and PNM

Resources to its employees.

D. ADA Training

38. Defendants agree to conduct ADA training for all supervisory/managerial, and

human resource employees on an annual basis for a minimum of two (2) hours. The

purpose of this training is to educate employees on discrimination covered by the ADA.

The training will define conduct which violates the ADA and explain the responsibilities

of employees and management in maintaining a work environment free of discrimination

and retaliation pursuant to the requirements of ADA, explain the procedure for providing

reasonable accommodation for disabilities, and explain the procedure for how

employees may complain if they believe they have been denied accommodation or

otherwise subjected to disability-based discrimination. In addition, the training will

explain policies related to compliance with this Decree. All training under this Paragraph

38 shall be at Defendants’ selection and expense. The trainer or qualified professional

for the Human Resources Consultants and ADA Analyst training shall be an outside

vendor, not employed by Defendants, selected by Defendants and subject to approval

by the EEOC. The trainer or qualified professional for training of all other employees

may be an employee of Defendants. The Human Resources and supervisor/manager

training may be conducted in-person, by video, by webinar, by audio, or by any

combination of these methods; likewise, the training for non-supervisory employees

may be conducted in-person, by video, by webinar, by audio, or by any combination of

these methods or another similar method. The training will be conducted as follows:

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A. Supervisors and Managers and Human Resource Employees (not

listed in B below): Defendants agree to conduct ADA training on an annual

basis for at least two (2) hours per year for its supervisors and managers and

Human Resource Employees not listed in B below.

B. HR Consultants and ADA Analyst: Defendants agree to conduct ADA

training on an annual basis for at least four (4) hours per year for its HR

Consultants and ADA Analyst employees. These four hours can be broken up

into two 2-hour trainings per year.

B.1. Training for HR Consultants and the ADA Analyst will additionally

focus on what is necessary to conduct a full and fair investigation of employee

complaints of discrimination and how to conduct the ADA interactive process.

B.2. Additionally, Defendants will require employees who are newly hired

or promoted into a human resource position, complete two (2) hours of general

EEO training within ninety (90) business days of being hired or promoted into a

human resource position.

C. Non-Supervisory Employees: Defendants agree to conduct ADA

training on an annual basis for at least one (1) hour per year for all non-

supervisory employees.

C.1. New Employees: For all non-supervisory new hires the

Defendants agree to conduct at least a 1-hour ADA training required

under this paragraph during the employee’s orientation, prior to their hire

or within fifteen (15) business days of their hire. This training for new

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employees will satisfy the first annual requirement for non-supervisory

employees.

D. The training may also include information about other laws prohibiting

discrimination and harassment or other topics chosen by Defendants; however,

the periods of time outlined above in Paragraphs 38 (A)-38 (C), at a minimum,

must relate to ADA training.

E. The ADA trainings will focus on

E.1. Defendants’ Anti-Discrimination and Reasonable Accommodation

Policies described above;

E.2. Discrimination based on disability;

E.3. Employees’ available avenues to complain of discrimination;

E.4. Employees’ available avenues to request reasonable

accommodations, including but not limited to extensions of medical, FMLA

or worker’s compensation leave;

E.5. Explanation of the interactive process for assessing reasonable

accommodations; and

E.6. Training for supervisory, management, and HR employees will

additionally focus on their obligation to prevent and promptly correct

harassing and retaliatory conduct and how to properly respond to requests

for accommodations.

E.7. Training for HR Consultants and the ADA Analyst will additionally

address accommodations available for employees with lifting, pushing, or

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pulling restrictions, including a variety of assistive devices and resources

for help finding potential accommodations for particular medical

conditions.

F. Defendants agree that the first such training session for each employee

group identified above, will take place within nine (9) months after the Court’s

entry of this Decree.

G. The ADA-related training required by this Decree will not be a basis to

reduce the amount of EEO training provided on subjects other than the ADA.

39. For each training program required under this Decree and conducted during the

reporting period, Defendants shall record a registry of attendance.

40. For each training program required under this Decree and completed during the

reporting period, Defendants shall keep record of completion through their ELM process

or otherwise.

41. For each training program required under this Decree, Defendants will provide

the following information to the Monitor, identified in Sec. H: (a) a detailed agenda; (b)

copies of all training material provided to or utilized by the trainers; and (c) the name of

each trainer and a summary of his or her qualifications.

E. Job Description, Essential Function Assessment, and Functional Capacity

Evaluations

E. 1. Review by ADA Job Analyst. Defendants must hire or contract with a

qualified Job Analyst candidate or a company within 90 business days of the entry of

the Consent Decree to perform the functions outlined in this section.

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E.2. ADA Job Analyst Duties. The employee selected or the entity contracted

with for the ADA Job Analyst position will be involved in conducting the job analysis

discussed below in paragraph 42.

E.3. Replacement. In the event the ADA Job Analyst is unable or unwilling to

continue to serve, takes another position, or leaves their employment with Defendants,

Defendants shall promptly recruit for and hire, and/or contract with, a new ADA Job

Analyst as described in paragraph 42 below. Should that occur, the time limits for the

tasks outlined in Paragraph 42 to be completed by the ADA Job Analyst will be adjusted

for any period where the ADA Job Analyst position is vacant plus one (1) additional

month to allow for onboarding of any new hire.

42. ADA Job Analyst’s Responsibilities. During the term of the Decree, the ADA

Job Analyst will have the following responsibilities, in addition to any others assigned by

Defendants:

A. Within one hundred-twenty (120) business days of the entry of the Decree

the ADA Job Analyst shall initiate a review and job analysis of all positions

requiring DOT certification (“Relevant Positions”) at Defendants Public Service

Company of New Mexico and PNMR Services Company to determine whether

the current job descriptions match the knowledge and skills required to perform

the duties and responsibilities of the position;

B. Within one hundred-twenty (120) business days of the entry of the Decree

the ADA Job Analyst shall initiate a review and job analysis of all Relevant

Positions as defined in Paragraph 43.A., including analysis of which functions are

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essential and marginal, based on standards articulated in ADA regulations and

interpretive guidance published at 29 C.F.R. § 1630.2 (n) (regulation) and

Appendix to Part 1630, § 1630.2(n) (interpretive guidance).

C. Within nine (9) months of the entry of this Decree, the ADA Job Analyst, to

the extent necessary, shall make recommendations to Defendants regarding

amendments to or replacement of its job descriptions of Relevant Positions (as

defined in Paragraph 42.A.) reviewed as necessary to accurately reflect essential

and marginal functions, and develop and validate, where applicable, physical

tests needed to determine fitness for duty of employees and prospective

employees.

D. The Defendants shall provide reports regarding the work of the ADA Job

Analyst on the projects specified in Paragraphs 43 (A-C) above to the EEOC for

each six (6) month period following the entry of this Decree, until the job analysis

is complete. The reports shall be due every six (6) months after the entry of the

Decree with the first report being due seven months (7) after the entry of the

Decree and then every six months thereafter through its duration.

43. Reporting Requirements: Each report required by Paragraph 42 (D) of the

Decree shall provide the following information:

A. Generally. The ADA Job Analyst shall identify in their report any areas

where the ADA Job Analyst believes they are unable to comply with the terms of

this Decree.

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B. The ADA Job Analyst should identify their recommendations made to

Defendants and the extent to which Defendants accepted, partially accepted, or

rejected each of the ADA Job Analyst’s recommendations, including a description

of any modification of job descriptions, testing, policies, or procedures adopted

by Defendants as a result of the ADA Job Analyst’s recommendations.

F. Notice Posting

44. Within five (5) business days after the Court’s entry of this Decree, Defendants

shall post in conspicuous areas readily accessible to all employees (such as the

employees’ lounge or break room) and on Defendants’ intranet(s), the Notice attached

as Exhibit C to this Decree. The Notice shall be similar type and style as Exhibit C. The

Notice shall remain posted for the duration of this Decree. If Defendants observe that

the Notice is covered, removed, defaced, or otherwise altered, it will take action to

replace the Notice, but Defendants are not required to protect against or otherwise

monitor any activity that results in the covering, removal, defacing or other alterations of

the Notice. Defendants shall certify to the Commission, in writing, within thirty (30)

business days of entry of this Decree that the Notice has been properly posted.

G. EEO Compliance and Discipline

45. Defendants agree that if any Defendant employee violates its Anti-Discrimination

Policy or Reasonable Accommodation Policy, the employee shall be subject to

discipline, up to and/or including, discharge.

46. For the duration of this Decree, Defendants shall submit EEO-1 Component 1

reports on an annual basis, in accordance with the requirements and deadlines of

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section 709(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e-8(c), and 29 CFR 1602.7-.14 and 41 CFR 60-1.7(a).

H. Consent Decree Monitor

47. Appointment. Within thirty (30) business days of the entry of this Decree,

Defendants must appoint an employee or contractor to act as the Consent Decree

Monitor (“Monitor”) to oversee the implementation by Defendants of the terms of this

Decree. The name of the Consent Decree Monitor and their contact information must be

provided to the EEOC within thirty (30) business days of the entry of the Consent

Decree.

48. Replacement. In the event the Monitor is unable or unwilling to continue to

serve, takes another position or leaves employment with the Defendants, Defendants

will select a different internal or external monitor.

49. Monitor’s Responsibilities. During the term of the Decree, the Monitor will have

the following responsibilities:

A. Within ninety (90) business days of the entry of the Decree, and every

three (3) months thereafter for the duration of the Decree, the Monitor shall

review all requests for a reasonable accommodation, all records documenting the

required interactive process and individualized assessment of potential

accommodations for employees or prospective employees with disabilities, and

the status of any employee who has been on FMLA (for their own serious health

condition) or medical leave for 10 weeks or more, and those on LTD for more

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than 5 months. Based on the Monitor’s records review, the Monitor shall

communicate to Defendants any recommendations.

B. The Monitor shall review all records documenting employee complaints of

discrimination based on disability, including oral and written complaints, charges

of discrimination, and records relating to such complaints, and including

complaints about matters relating to accommodation of disabilities and

complaints about unfair treatment based on disabilities. The Monitor shall make

recommendations for corrective actions to Defendants.

C. The Monitor, to the extent necessary, shall make recommendations to

Defendants regarding compliance with this Decree.

D. The Monitor shall report to the EEOC every twelve (12) months regarding

what actions he/she took during the prior reporting period(s).

E. The Monitor shall ensure that Defendants comply with the requirements

that it provide each employee a copy of its revised EEO and Reasonable

Accommodation policies as required by Sections VIII(B)-(C).

F. The Monitor shall review for adequacy the training agendas and materials

identified in Paragraph 38.

G. The Monitor shall provide annual reports to the EEOC for each twelve-

month period following the entry of this Decree. The reports shall be due thirty

(30) days following the respective twelve (12) month period, except the final

report which shall be submitted to the Commission four (4) weeks prior to the

date on which the Consent Decree is to expire.

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50. Reporting Requirements: Each report of the Monitor shall provide the following

information:

A. Generally. The Monitor shall identify in its report any areas where the

Monitor believes they are unable to comply with the terms of this Decree.

B. Recommendations. The report shall include all recommendations made

to Defendants under Paragraph 49, the reason for the recommendation and

Defendants’ response to the recommendation.

C. Reports of Discrimination. For purposes of this paragraph, the term

“report of discrimination” will include any written or verbal complaint made to a

manager or of which a manager is aware which alleges discrimination, or the

witnessing of discrimination, or unfair treatment based on disability. The

complainant need not invoke the terms “discrimination,” “ADA,” “retaliation,”

“violation,” or “rights,” etc. Employees are not trained in legalese and frequently

use such terms as “unfair,” “unprofessional,” “uncomfortable,” “unjust,”

“retaliatory,” “treated differently,” or “needing additional time to return” and other

such language that indicates an allegation of discrimination related to a disability

or the ADA. The report is not required to identify workers compensation claims.

The report shall include a brief summary of each complaint, including the date of

the complaint, the name of the individual(s) who allegedly engaged in the

discriminatory conduct, the Defendants’ investigation and response to the

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complaint, the name of the person who investigated or responded to the

complaint, and what, if any resolution was reached.

D. Request for Accommodation

1. For purposes of this paragraph, the term “request for accommodation”

will include any written or verbal request of an accommodation, by a

qualified employee or applicant, related to job performance, including job

restructuring, leave, modified or part-time schedules, modified workplace

policies, such as extensions of medical leave, or leave after exhaustion of

FMLA or worker’s compensation leave, job restructuring, and for existing

qualified employees unable to be reasonably accommodated under the

ADA in their existing position, reassignment to another position that is then

available or known at that time will be available within three months for

which a posting has been generated.

2. The report shall include:

A brief summary of the reason for the request; whether the request was

granted; if the request was not granted, an explanation of the reasons the

request was denied.

E. Complaints of Retaliation

1. For purposes of this paragraph, the term “complaint of retaliation” will

include any written or verbal complaint which alleges retaliation for activity

that is protected under the ADA or alleges retaliation for conduct which the

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Defendants recognize or should have recognized as protected activity

under the statute.

2. The report shall include:

A brief summary of each complaint, including the date of the complaint,

the name of the individual(s) who allegedly engaged in the retaliatory

conduct, the Defendants’ investigation and response to the complaint, the

name of the person who investigated or responded to the complaint, and

what, if any resolution was reached.

X. RECORD KEEPING AND REPORTING PROVISIONS

51. For the duration of this Decree, Defendants shall maintain such records as are

necessary to demonstrate its compliance with this Decree, including but not limited to

the documents specifically identified below. For the duration of the Decree, Defendants

shall retain the following records relating to activities occurring during the duration of the

Decree:

A. Official documentation regarding employees placed on leave due to

illness, injury, or other medically related reasons (hereafter referred to as

“medical leave”), including any employee requests for leave and medical records

requiring leave;

B. Official documentation regarding potential extensions of medical leave,

including employee requests, FMLA forms with medical provider information

indicating extended leave may or may not be necessary, and other medical

provider information indicating extended leave may or may not be necessary;

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C. Documentation of requests for reasonable accommodations from

employees or applicants;

D. Documentation of any interactive process engaged in to determine

reasonable accommodation for disability;

E. Documentation of any reasonable accommodations granted;

F. Documentation of accommodation requests denied, including an

explanation for the denial, and whether some other reasonable accommodation

was offered or provided;

G. Documentation of complaints of discrimination based upon disability,

including the complaint, records of the investigation, any non-privileged

investigative memo or recommendation, and any remedial measures taken;

H. Documentation of recommendations provided by the ADA Job Analyst;

I. Documentation of the completion of or attempts to complete physical tests

used to determine fitness for duty of an employee or prospective employee.

J. Registries of attendance recorded in Paragraph 38;

K. Copies of electronic or other documentation of completion contemplated

by Paragraph 38; and Copies of training information identified in Paragraph 41.

Defendants presently use Third-Party Administrators (TPA) to administer their

workers’ compensation, FMLA and LTD programs; Defendants will make written

request of same that such information be retained in compliance with this

Decree.

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52. The preceding paragraph requires the retention of existing documents and

records, and retention of documents and records that are hereinafter created and

maintained in the normal course of Defendants’ business activities or in compliance with

this Decree.

53. Information Requests. The EEOC shall have the right to make requests for

non-privileged information from Defendants which demonstrates compliance with the

Decree over the duration of the Decree. Defendants shall comply with a reasonable

request for such information within sixty (60) business days of the request.

54. Reporting Requirements. Defendants shall provide annual reports for each

twelve (12) month period following the entry of the Decree. The reports shall be due

thirty (30) business days following the respective twelve (12) month period, except the

final report which shall be submitted to the Commission at least four (4) weeks prior to

the date on which the Consent Decree is to expire.

55. For the annual reports described in Paragraph 54, Defendants shall provide to

the EEOC the following information (in electronic format):

A. Records relating to disability-related accommodations:

Documentation of information gathered and decisions made during the reporting

period to grant or deny disability-related accommodations, including: employee’s

full name, contact information (including addresses, phone numbers, and email

addresses), position, any documented request, what accommodation, if any, was

granted, a complete explanation of any decision to provide no accommodation,

and documentation of the required interactive process and individualized

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assessment, including job description and other records documenting potential

accommodations researched or considered.

B. Training: For each training program required under Paragraph 38, and

conducted during the reporting period, Defendants shall identify the vendor,

provide a copy of the program agenda, training materials and record of which

employees attended the training.

C. Posting of Notice: Defendants shall recertify to the Commission that the

Notice required to be posted under Paragraph 44 of this Consent Decree has

remained posted during the reporting period, or, if removed or defaced, was

promptly replaced.

D. Policy Review: Defendants shall report on the status of the EEO and

Reasonable Accommodation policy reviews required under Section IX, Part B

(Paragraph 28 et seq.) and Part C (Paragraph 32 et seq.) above and provide

copies of all polices impacted, modified, or created under Section IX, Parts B and

C above.

XI. RETENTION OF JURISDICTION AND ENFORCEMENT OF DECREE

56. This Court shall retain jurisdiction of this cause for purposes of compliance with

this Decree and entry of such further orders or modifications as may be necessary or

appropriate to effectuate equal employment opportunities for employees.

57. There is no private right of action to enforce Defendants’ obligations under the

Decree and only the Commission, or its successors or assigns may enforce compliance

herewith.

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58. The Commission may petition this Court for compliance with this Decree at any

time during which this Court maintains jurisdiction over this action. Should the Court

determine that Defendants have not complied with this Decree, appropriate relief,

including extension of this Decree for such period as may be necessary to remedy its

non-compliance, may be ordered.

59. In the event that the EEOC reasonably believes the Defendants have failed to

comply with any provisions of the Decree, the EEOC shall notify the Defendants in

writing of such non-compliance and afford the Defendants at least thirty (30) business

days to remedy the non-compliance or satisfy the EEOC that the Defendants has

complied. If the Defendants have not remedied the alleged non-compliance or satisfied

the EEOC that it has taken steps to implement a plan to resolve any alleged non-

compliance within the thirty (30) or more business days afforded, the EEOC may apply

to the Court for appropriate relief. Defendants will be afforded an opportunity to

respond.

60. Absent extension, this Decree shall expire by its own terms at the end of twenty-

four months from the date of entry without further action by the Parties.

XII. EEOC AUTHORITY

61. With respect to matters or charges outside the scope of this Decree, this Decree

shall in no way limit the powers of the Commission to seek to eliminate employment

practices or acts which are not encompassed by this Decree and are made unlawful by

any of the statutes over which the EEOC has enforcement authority.

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XIII. COSTS AND ATTORNEY'S FEES

62. Each party shall be responsible for and shall pay its own costs and attorney’s fees.

XIV. MISCELLANEOUS

63. Nothing in this Decree shall be deemed to create any rights on the part of non-

parties, including Charging parties or Aggrieved Individuals, to enforce this Decree. The

right to seek enforcement of the Decree is vested exclusively in the EEOC.

64. Nothing in this Decree, nor any statements, discussions, or communications, nor

any materials prepared, exchanged, issued or used during the negotiations leading to

this Decree, shall be admissible in any proceeding of whatever kind or nature as

evidence of disability discrimination, or as evidence of any violation of the ADA, the

common law of any jurisdiction, or any federal, state, or local law. Notwithstanding the

foregoing, the Decree may be used by either Party in any proceeding in this Court to

enforce or implement the Decree or any orders or judgments of this Court entered in

conjunction with the Decree.

XV. NOTICE

65. Unless otherwise indicated, any notice, report, or communication required under

the provisions of this Decree shall be sent by email and certified mail, postage prepaid,

as follows:

Jeff A. Lee Scott Seamster

Senior Trial Attorney Associate General Counsel; Lewisville:
EEOC Albuquerque Area Office Regional Office – TNMP Headquarters
PO Box 128 577 N. Garden Ridge Blvd.
Albuquerque, NM 87103 Lewisville, TX 75067
jeff.lee@eeoc.gov Scott.Seamster@pnmresources.com
-and-

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John K. Ziegler
Jacqueline M. Woodcock
Conklin, Woodcock & Ziegler, P.C.
320 Gold Ave., SW; Suite 800
Albuquerque, NM 87102
jkz@conklinfirm.com
jmw@conklinfirm.com
(Counsel for PNM)

-and-

Paul Sanchez
Human Resources Manager
PNM Resources, Inc.
Albuquerque: Downtown – PNM Headquarters
414 Silver Ave. SW, MS-0705
Albuquerque, NM 87102
Paul.Sanchez@pnmresources.com

XVI. SIGNATURES

66. The parties agree to the entry of this Decree subject to final approval by the Court.

SO ORDERED this _____ day of ________________, 2023.

BY THE COURT:

__________________________
Honorable Kenneth J. Gonzales
United States District Judge

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s/ Jeff A. Lee
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Case 1:23-cv-00848-KG-LF Document 7-1 Filed 09/29/23 Page 35 of 39
 Case 1:23-cv-00848-KG-LF Document 7-1 Filed 09/29/23 Page 36 of 39

Exhibit B

NEUTRAL LETTER OF REFERENCE

To Whom It May Concern:

[insert name] was employed with PNMR Services Company (or Public Service Co. of

New Mexico) as a [job title] from [date] until [insert date]. As a [position title] Mr./Ms. ______

performed various functions surrounding (describe).

Signed: ______________________________
[insert name], CEO, [company name]
 Case 1:23-cv-00848-KG-LF Document 7-1 Filed 09/29/23 Page 37 of 39

Exhibit C
NOTICE TO EMPLOYEES

This Notice is being posted by agreement between Public Service Company of New Mexico
and PNMR Services Company (collectively “PNM”) and the Equal Employment Opportunity
Commission (EEOC), pursuant to a Consent Decree entered in the case of EEOC v. Public Service
Company of New Mexico and PNMR Services Company, Civ. No. __________________.
Unlawful Disability Discrimination: Under federal law, it is unlawful for an employer to
discriminate against any employee or applicant for employment based on, among other things,
disability. In other words, an employer may not make any decision regarding job application
procedures, hiring, promotion, discharge, pay, job training, and other terms, conditions, and
privileges of employment based on disability, nor may an employer harass an employee because
of disability or tolerate workplace harassment based on disability.
Reasonable Accommodation for Disabilities: Under federal law, an employer is required to
provide reasonable accommodation for people with disabilities if some accommodation can be
provided which will enable the person to perform essential job functions and such accommodation
can be provided without causing undue hardship to the employer. When an employee requests
reasonable accommodation for disability, the employer is required to engage with the employee
in an interactive process to determine what, if any, accommodation is appropriate under the
unique circumstances of the requesting employee. Failure to provide reasonable accommodation
when required is a form of unlawful disability discrimination. An employee does not have to be
100% healed to be able to return to their job, so long as there is a reasonable accommodation
that can be made so the employee can perform the essential functions of that position which
does not result in an undue hardship to the employer. PNM does not have a requirement that
employees be 100% healed before returning to work; employees should inform HR if they are
able to return to work with restrictions to see if they can be accommodated.
Requests for Medical Information: Generally, an employer can only ask medical questions
or require a medical exam of its employees if it needs medical documentation to support an
employee’s request for an accommodation or if the employer believes that an employee is not
able to perform a job successfully or safely because of a medical condition. If an employee has
been absent from work due to illness or injury, the employer may require that you provide a
doctor’s note indicating that the employee is able to return to work. Your employer may not
require the employee or the employee’s doctor explain the medical reason for your absence.
Rather, an employer is entitled to know that an employee is physically able to return to work and
what, if any, medical restrictions the employee may have that may affect their ability to perform
their job functions. If an employee has any medical restrictions, it is imperative that the employer
know about those restrictions so that it can work with the employee to try to accommodate those
restrictions without undue hardship. If an employee has medical restrictions or otherwise asks
for reasonable accommodation for a disability (see prior paragraph), it may be necessary for the
employer to obtain medical records or talk to your doctor in order to determine whether the ADA
applies and, if so, what accommodations may be appropriate. If your employer requests medical
information in order to determine what accommodation may be appropriate, such medical
information must be kept confidential and cannot not be stored in an employee’s personnel file.
Supervisors should know about any medical restrictions their employees have, but do not need
to know the underlying medical condition.
 Case 1:23-cv-00848-KG-LF Document 7-1 Filed 09/29/23 Page 38 of 39

Unlawful Discrimination and Retaliation: In addition to disability discrimination, it is also

unlawful to make employment decisions based on race, color, religion, sex (including pregnancy),
national origin, age (over 40), or genetic information. It is also unlawful to retaliate against any
individual because he or she has opposed what he or she believes in good faith to be unlawful
discrimination, or has made a charge, testified, assisted or participated in any manner in an
investigation, proceeding, or hearing regarding such alleged unlawful discrimination.
PNM’s Policies: Under PNM’s Policies, employees are entitled to work in an environment free
of discrimination or harassment based on disability, race, color, religion, sex (including
pregnancy), national origin, age (over 40), or genetic information. Similarly, employees are
encouraged to report any conduct believed to be unlawful discrimination or harassment, and
PNM’s Policies specifically forbid any retaliation against an employee who reports such conduct.
Reporting Improper Conduct: If you are aware of any events, conduct, or information, which
you believe may indicate some unlawful discrimination (including failure to provide reasonable
accommodation for disabilities), harassment, hostile work environment, or retaliation, it is very
important that you report the information so that steps may be taken to investigate and remedy
any unlawful discrimination (including failure to provide reasonable accommodation for
disabilities), harassment, hostile work environment, or retaliation which has been found to exist.
You may report such matters to PNM, the EEOC, or the agency of your state that enforces the
state’s anti-discrimination laws, as set forth below.
Reporting to Defendant: Within PNM, you may make such a report to your supervisor,
manager, Human Resources Consultant or ADA Analyst. By reporting in this manner, you do not
waive any right to file a charge of discrimination with EEOC or the agency of your state that
enforces the state’s anti-discrimination laws.
Reporting to the EEOC: EEOC is the federal agency responsible for enforcing federal laws
prohibiting employment discrimination based on race, color, religion, sex (including pregnancy),
national origin, age (over 40), disability, or genetic information. You may directly contact the
Albuquerque Area Office of EEOC, located at 505 Gold Avenue SW, Suite 6401, Albuquerque, NM
87102, or at any of the following numbers:
Telephone: 505.738.6721
TTY: 800.669.6820
Fax: 505.248.5233

This Notice shall remain posted through _______________, 2025.

___________________________________________________
Date Rebecca Teague, Vice President Human Resources
Public Service Company of New Mexico

___________________________________________________
Date Rebecca Teague, Vice President Human Resources
PNMR Services Company
 Case 1:23-cv-00848-KG-LF Document 7-1 Filed 09/29/23 Page 39 of 39

Exhibit D

RELEASE

In consideration for $ ______________ paid to me by Public Service Company of New

Mexico or PNMR Services Company, in connection with the resolution and settlement of
EEOC v. Public Service Company of New Mexico and PNMR Services Company, Civil
Action No. 1:23-cv- ______________________ , I release and waive my right to
recover for any claims of disability discrimination, under the American with Disabilities
Act, as amended, that I had prior to the date of this release, any claims raised or
alleged in my charge(s) of discrimination and any claims included in EEOC’s complaint
in EEOC v. Public Service Company of New Mexico and PNMR Services Company,
Civil Action No. 1:23-cv- _______________________.

Name

Date