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U.S. Equal Employment Opportunity Commission v. Big Lots

February 16, 2010

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
BIG LOTS, INC. AND DOES 1-5, INCLUSIVE, DEFENDANTS.



CONSENT DECREE

I. INTRODUCTION

Plaintiff U.S. Equal Employment Opportunity Commission (the "EEOC") and Defendant Big Lots, Inc. ("Big Lots") hereby stipulate and agree to entry of this Consent Decree ("Decree") to resolve the EEOC's claims in this action, filed under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), alleging that Charging Party and a class of similarly situated individuals were subjected to unlawful employment practices on the basis of their race (Black).

II. SCOPE AND PURPOSES

A. The parties to this Decree are the EEOC and Big Lots, Inc. (collectively, the "Parties"). Defendant asserts that Big Lots Stores, Inc. is the appropriate party in this case and not Big Lots, Inc. This Decree shall be binding on and enforceable against Big Lots, which includes its officers, directors, agents, successors and assigns. The scope of this Decree encompasses Big Lots' Rancho Cucamonga Distribution Facility (hereafter "RCDC").

B. The parties have entered into this Decree for the following purposes:

1. To avoid expensive and protracted costs incident to litigation;

2. To provide a final and binding settlement upon the parties as to all claims alleged in the Complaint;

3. To provide monetary and injunctive relief;

4. To ensure that Big Lots' employment practices comply with federal law, including ensuring a work environment free from discrimination, harassment and retaliation;

5. To ensure training for Big Lots' managers and employees with respect to their obligations under Title VII; and

6. To provide an appropriate and effective mechanism for handling discrimination complaints in the workplace.

III. RELEASE OF CLAIMS

A. The parties agree that this Decree constitutes a complete resolution of EEOC Charge No. 480-2006-00714 and the complaints filed in this action. This encompasses the EEOC's allegations that, since at least January 2005, Defendant violated Title VII of the Civil Rights Act of 1964, as amended, by subjecting Charging Party and similarly situated Black employees at its Southern California Distribution Center in Rancho Cucamonga to race based disparate treatment and to race based harassment by co-workers and supervisors. The Decree does not, however, resolve any charges of discrimination that may be pending with or brought in the future before the EEOC other than the charge specifically referred to in this paragraph.

B. Nothing in this Decree shall be construed to limit or reduce Big Lots' obligation to comply fully with Title VII or any other federal employment statute.

C. This Decree in no way affects EEOC's right to bring, process, investigate or litigate other charges that may be in existence or may later arise against Big Lots in accordance with standard EEOC procedures.

D. Nothing in this Decree shall be construed to preclude any party from bringing suit to enforce this Decree in the event that any Party hereto fails to perform the promises and representations contained herein.

IV. EFFECTIVE DATE AND DURATION OF DECREE

A. The provisions and agreements contained herein are effective immediately upon the date which this Decree is entered by the Court ("the Effective Date").

B. Except as otherwise provided herein, this Decree shall remain in effect for three (3) years after the Effective Date. On the second anniversary of the Effective Date, the decree will be shortened to two and a half years if, after evaluating Big Lots' Consent Decree compliance, the EEO Consultant deems that the additional six months of injunctive relief are not needed at RCDC. Such determination shall not be unreasonably withheld.

V. JURISDICTION

A. This Court has jurisdiction over the Parties and the subject matter of this lawsuit. The Complaint asserts claims that, if proven, would authorize this Court to grant the equitable relief set forth in this Decree. The terms and provisions of this Decree are fair, reasonable and just. This Decree conforms with the Federal Rules of Civil Procedure and Title VII and is not in derogation of the rights or privileges of any person.

B. This Court shall retain jurisdiction of this action during the duration of the Decree for the purposes of entering all orders, judgments and decrees that may be necessary to implement the relief provided herein.

VI. MODIFICATION AND SEVERABILITY

A. This Decree constitutes the complete understanding of the Parties with respect to the matters contained herein. No waiver, modification or amendment of any provision of this Decree will be effective unless made in writing and signed by an authorized representative of each of the Parties.

B. If one or more provisions of the Decree are rendered unlawful or unenforceable, the Parties shall make good faith efforts to agree upon appropriate amendments to this Decree in order to effectuate the purposes of the Decree. In any event, the remaining provisions will remain in full force and effect unless the purposes of the Decree cannot, despite the parties' best efforts, be achieved.

C. By mutual agreement of the Parties, this Decree may be amended or modified in the interests of justice and fairness in order to effectuate the provisions of this Decree.

VII. COMPLIANCE AND DISPUTE RESOLUTION

A. The Parties expressly agree that if the EEOC has reason to believe that Big Lots has failed to comply with any provision of this Consent Decree, the Commission may bring an action before this Court to enforce the Decree. Prior to initiating such action, the Commission will notify Big Lots and its legal counsel of record, in writing, of the nature of the dispute. This notice shall specify the particular provision(s) that the EEOC believes Big Lots has breached. Absent a showing that the delay will cause irreparable harm, Big Lots shall have sixty (60) days to attempt to resolve or cure the breach. The Parties agree to cooperate with each other and use their best efforts to resolve any dispute referenced in the EEOC notice.

B. After sixty (60) days have passed with neither a resolution to any noticed dispute, nor an agreement to extend the time further, the EEOC may petition this Court for resolution of the dispute, seeking all available relief, including, but not limited to, an extension of the term of the Decree for such period of time as Big Lots is shown to be in breach of the Decree, monetary relief, injunctive relief, and appropriate attorney's costs associated with the petition.

VIII. MONETARY RELIEF

A. Big Lots shall pay a total of $400,000 (the "Total Settlement Amount") to resolve this action. The designation of monies to the Charging Party and the identified and as-yet unidentified class members shall be made at the sole discretion of the EEOC.

B. The EEOC shall send Defendant a list containing the name, address and amount of distribution for Charging Party and each presently identified class member. Within twenty (20) from the EEOC's delivery of said list to Defendant or from the Effective Date, whichever is later, Big Lots shall forward, via certified mail, a check to the Charging Party and each presently identified class member in amounts designated by the EEOC.

C. Class Fund And Class Attorney Fees Fund. Within ninety (90) days of the Effective Date, Big Lots shall set aside from the Total Settlement Amount amounts designated by the EEOC to be held in escrow as a potential Class Fund for the purpose of paying as-yet unidentified class members. This Class Fund may be used to distribute, in accordance with the provisions of this Decree, monetary payments to any eligible as-yet unidentified class members (as defined below).

1. Establishing the Class Fund

a. Within ninety (90) days of the Effective Date, Big Lots shall deposit the money into the Class Fund escrow account as required by this Decree. Within ten (10) business days after such deposit, Big Lots shall provide the EEOC with written verification of the funding.

b. Ninety (90) days after the Effective Date, Big Lots shall notify the EEOC of the amount of any monies in the escrow account, including accrued interest.

c. The Class Fund shall be used to make payments to as-yet unidentified class members who timely submit claims and whom the EEOC determines to be eligible to receive monetary relief in this lawsuit.

d. Big Lots will pay attorneys' fees up to $200 for reviewing each Individual Release required by Big Lots from as-yet unidentified class members who timely submit claims and whom the EEOC determines to be eligible to receive monetary relief in this lawsuit (the "Class Attorney Fee Fund"). The aggregate of these payments is not to exceed $5,000.

i. Each class member will be provided an opportunity to seek the advice of an attorney to assist them with the decision regarding whether to sign the Individual Release.

ii. Resolution of the EEOC's suit against Defendant is not contingent upon any Individual Release: and the EEOC will not be a party to any Individual Release.

e. Any portion of the Class Fund, including accrued interest, not distributed under this Decree will be donated by Big Lots to a charity approved by the EEOC.

2. Claims Process

a. Within ten (10) business days following the entry of this Decree, Big Lots shall forward to the EEOC the names, date of birth, most current last known addresses, telephone numbers, social security number, state drivers' license and/or identification number, tax identification number, emergency contact information, and any forwarding employment information for all employees who self identified as African American and who were employed by Big Lots from January 1, 2004 until the Effective Date at the RCDC.

b. Upon receipt of the employee list described above, the EEOC shall send a questionnaire to each former or current employee. Within 180 days of receipt of employee list, the EEOC shall make a determination as to the potential class member's eligibility and the amount of monetary relief from the Class Fund for each eligible class member. The EEOC has the sole discretion in determining class member eligibility. The EEOC also has sole discretion to determine any monetary amount allocated from the Class Fund to any as-yet unidentified class member. The EEOC's determination of these issues is final, and Big Lots agrees that it will neither participate in, nor object to, the EEOC's determinations.

c. Within ten (10) business days of receiving the EEOC's Class Fund distribution list, Big Lots shall direct the escrow agent to forward payment from the Class Fund to each class member, via certified mail, return receipt requested, as determined by the EEOC and reflected in the distribution list.

d. All amounts distributed from the Class Fund constitute compensatory damages under the Civil Rights Act of 1991, 42 U.S.C. ยง 1981a. The monies shall be designated as compensatory damages and no tax withholding shall be made. Big Lots shall issue a Form 1099 to each claimant in the amount of his/her check. Within three (3) business days of the issuance of each check, Big Lots shall submit a copy of that check and related correspondence to the Anna Y. Park, Los Angeles ...


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