The opinion of the court was delivered by: The Honorable Lawrence J. O'Neill U.S. District Court Judge
Amended Consent Decree; Order ERIKA MORALES and ANONYMOUS PLAINTIFFS ONE TROUGH EIGHT,
Plaintiff U.S. Equal Employment Opportunity Commission (the "EEOC" or "Commission")and Defendants ABM Industries Incorporated, ABM Janitorial Services, Inc., ABM Janitorial Services Northern-California ("Employer"); (all defendants are hereinafter collectively referred to as "Defendants" or "ABM") hereby stipulate and agree to entry of this Consent Decree to resolve the Commission's First Amended Complaint, 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 parties Erika Morales, Delia DeMejia, and nineteen other women designated as class members in this case by the EEOC (collectively known herein as "Claimants") were subjected to unlawful employment practices on the basis of sex, female, in violation of Section 706 (f)(1) and 3 and Section 707(f)(1) of Title VII. Nothing in this Decree shall construe or be construed to obligate any subsidiary of ABM Industries Incorporated not named as a defendant in this action.
II. PURPOSES AND SCOPE OF THE CONSENT DECREE
A. In the interest of resolving this matter, the Commission and Defendants (hereinafter sometimes collectively referred to as "the Parties") have agreed that this action should be finally resolved by entry of this Consent Decree ("Decree"). This Decree shall be binding on and enforceable against Defendants and their officers, directors, agents, successors and assigns. The Parties have entered into this Decree for the following purposes:
1. To provide appropriate monetary and injunctive relief;
2. To ensure that Defendants' employment practices comply with federal law;
3. To create a work environment free from hostility and retaliation;
4. To provide training for Employer's managers, supervisors, and employees with respect to their obligations under Title VII; and
5. To develop an appropriate and effective mechanism for receiving and handling Employer's sexual harassment and retaliation complaints in the workplace.
B. In entering into this Consent Decree, Defendants deny that they or anyone acting on their behalf engaged in actionable conduct. This Decree and compliance with this Decree shall not be construed as an admission of liability by Defendants, or as an admission by Defendants of any violation of rights of the Claimants or of any other person's allegation of harasment. To the extent that some of the Claimants intervened as plaintiffs in this action, they have entered into a separate agreement to which the EEOC is not a party. This Decree is not contingent upon said separate agreement.
A. The Parties agree that this Decree resolves EEOC's First Amended Complaint filed in this action in the United States District Court, Eastern District of California on July 17, 2009, captioned U.S. Equal Employment Opportunity Commission, Erika Morales, and Anonymous Plaintiffs One Through Eight v. ABM Industries Incorporated; ABM Janitorial Services, Inc.; and ABM Janitorial Services-Northern California; Case No. 1:07 CV01428-LJO-BAK (GSA) (hereafter "the Action"). The Parties further agree that this Decree constitutes a complete resolution of all EEOC claims of sexual harassment under Title VII made in this Action.
B. Nothing in this Decree shall be construed to limit or reduce Defendants' obligation to comply fully with Title VII or any other federal employment statute.
C. Nothing in this Decree shall be construed to preclude the EEOC from bringing suit to enforce this Decree in the event that any party hereto fails to perform the promises and representations contained herein.
D. This Decree in no way affects the EEOC's right to bring, process, investigate or litigate other charges that may be in existence or may later arise against Defendants other than the charges specifically identified in this Release of Claims section. As of the date that the parties executed this Decree, the Claimants do not have any open charges of harassment related to the allegations raised by the Claimants in this action against Defendants.
A. The Court has jurisdiction over the parties and the subject matter of this action. The First Amended Complaint asserts claims that, if proven, would authorize the Court to grant the relief set forth in this Decree. The terms and provisions of this Decree are fair, reasonable, and just. This Decree conforms to the Federal Rules of Civil Procedure and Title VII and is not in derogation of the rights or privileges of any person. The entry of this Decree will further the objectives of Title VII and will be in the best interest of the Parties.
B. The 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.
V. 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, provided that Defendants have substantially complied with the terms of this Decree. In the event that Defendants have not substantially complied, the duration of this Decree may be extended by Court order in order to effectuate its purposes.
A. If the Commission has reason to believe that Defendants have breached this Decree, the Commission may bring an action before this Court to enforce the Decree. Prior to initiating such action, the Commission will notify Defendants and their legal counsel of record, in writing, of the nature of the dispute. This notice shall specify the particular provision(s) that the Commission believes Defendants have breached. Absent a showing by either party that the delay will cause irreparable harm, Defendants shall have forty-five (45) days from the date of notice ("Dispute Resolution Period") to attempt to resolve or cure the breach.
B. The Parties agree to cooperate with each other and use their best efforts to resolve any dispute referenced in the EEOC notice.
C. After the expiration of the Dispute Resolution Period, the Commission may initiate an enforcement action in this Court, seeking all available relief, including an extension of the duration of the Decree for such time as the Defendants are shown to be in breach of the Decree.
D. 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 what the Defendants have not complied with this Decree, in whole or in part, it may impose appropriate relief, including an extension of the duration of this decree, the imposition of Commission's costs and attorneys' fees incurred in securing compliance with the Decree, and other relief the court deems appropriate.
VII. 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. If the Parties are unable to reach agreement, the Court shall order appropriate alternative provisions in order to effectuate the purposes of the Decree. Should one or more provisions of this Decree be deemed unlawful, all other lawful and enforceable provisions will remain in full force and effect.
A. Defendants agree to pay a total of Five Million, Eight Hundred Thousand Dollars ($5,800,000.00) in full resolution of this Action to be distributed amongst twenty-one women that the EEOC has identified as Claimants to the EEOC's suit, some of whom separately intervened. The distribution to the Claimants shall be at the sole discretion of the EEOC and is not subject to review. The EEOC shall provide Defendants with a list of the name and address to which the Claimants monetary relief should be delivered (hereafter "Distribution List"). Where indicated in the EEOC's Distribution List as monetary relief being delivered to Claimants represented by Intervenors' counsel, Defendants shall remit said amounts to the third Party administrator, in accordance with the Settlement Agreement executed by Defendants and Plaintiff-Interveners..
B. Defendants shall forward, via certified mail, a check to each individual identified by EEOC pursuant to Section VIII.A above within ten (10) business days of their receipt of EEOC's Distribution List and a signed W-9 Form. The EEOC has designated the monies to be paid to the Claimants as non-wage compensation under Title VII and no tax withholding shall be made. Defendants shall make appropriate reports to the Internal Revenue Service and other tax authorities. Defendants shall be solely responsible for any costs associated with the issuance and distribution of the 1099 tax reporting forms to each of the Claimants. Claimants shall be solely responsible for taxes payable, if any, on their respective portion of settlement proceeds. The tax handling and reporting of the monies paid to Plaintiff-Intervenors is set out in that separate Settlement Agrement. Nothing in this Decree constitutes tax advice nor meant to replace each Claimant's responsiblity to consult a tax expert with any relevant tax questions.
In some instance, the EEOC has designated that some claimants have claims that have resulted in personal injury. Those individuals shall be identified in the Distribution List accordingly. EEOC did not seek wage loss damages in settlement of this Action.
C. Within three (3) business days of the issuance of each and every settlement check, Defendants shall submit a copy of each check and related correspondence to the Regional Attorney, Anna Y. Park, U.S. Equal Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, CA 90012. Within five (5) business days of the issuance of each and every 1099 Form to the Claimants, Defendants shall submit a copy of each 1099 Form and related correspondence to the Regional Attorney, Anna Y. Park, U.S. Equal Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, CA 90012.
IX. CLAIMANT SPECIFIC INJUNCTIVE RELIEF
Within ten (10) days of the Effective Date of this Decree, ABM Industries Incorporated and/or the Employer as applicable shall:
A. remove from the personnel files of each identified Claimant's and, to the extent applicable, their supervisors, all negative complaints, reports, criticisms, and any other documents reflecting negatively on her job performance issued or recommended by the Claimant's accused harasser for the suit's relevant time period from 2000 to the present or references to the charges of discrimination filed against Defendants or their participation in this action;
B. to the extent that ABM Industries Incorporated and/or the Employer must keep records of the charges of discrimination or each Claimants involvement in the Action in order to effectuate this Decree, maintain said records separately and segregated from Claimants' personnel files;
C. refrain from providing negative references and limit employment reference inquiries related to Claimants to verifying whether the identified Claimant was employed by the Employer and the time period of such employment;
D. to the extent they continue to work for Defendants, ensure that they are monitored against harassment and retaliation; and
E. Change any termination of the Claimants to voluntary resignations.
X. DESIGNATION OF A MONITOR
A. Equal Employment Opportunity Monitor
Within thirty days (30) after the Effective Date, ABM shall retain an outside Equal Employment Opportunity Monitor("Monitor") of the EEOC and Defendants' choosing with demonstrated experience in the area of employment discrimination and sexual harassment issues, to implement and monitor compliance with Title VII and the provisions of this Decree. The parties have agreed that the designated Monitor shall be Michael Robbins from EXTTI, Incorporated. In the event that Michael Robbins of EXTTI, Incorporated is no longer able to perform his services as Monitor in this matter, the Commission shall provide ABM with a list of at least three suggested successor monitor candidates acceptable to the Commission. If the parties can not agree to a successor monitor from the EEOC's list, the parties will be required to file a joint motion for appointment of a monitor with both sides suggesting candidates and providing background information for the Court to select the Monitor. The Employer shall bear all reasonable costs associated with the selection and retention of the Monitor and the performance of his/her duties. The Monitor shall assist in the following:
1. Developing or, if deemed necessary by the Monitor, revising procedures to handle complaints under Title VII of harassment and retaliation;
2. If deemed necessary by the Monitor, revising, and redistributing any revised version of the anti- harassment policy and reporting procedure;
3. Review ABM's training materials and assist ABM training its employees to ensure a workplace free of harassment and retaliation;
a. The Monitor shall work with Defendants to develop an appropriate and effective method of providing Employer's employees with anti-harassment and retaliation training to Employer's hourly employees, to include training on ABM Inc.'s policies and procedures relating to sex harassment and retaliation.
4. Assist or ensure proper training of ABM employees who are involved in overseeing or addressing Employer's employees' sex harassment complaints on their rights and responsibilities under Title VII, including but not limited to the responsibilities to provide a workplace free of harassment and retaliation;
5. Ensure that appropriate and consistent disciplinary policies exist to hold employees and managers accountable for failing to take appropriate action and/or for engaging in conduct prohibited under this Decree;
6. Ensuring the maintenance of an effective centralized system of tracking, harassment, and retaliation complaints;
7. Monitoring class members and witnesses who participated in this lawsuit and who continue to be employed by the Employer to ensure that they have not been subjected to any retaliation or harassment. The Monitor shall contact these individuals at least every three (3) months;
8. Ensuring that audits are conducted properly to ensure that Employer's employees, managers, supervisors, and leads are held accountable and to implement Defendants' zero tolerance policy with respect to harassment and retaliation; and
9. Further ensuring compliance with the terms of this Decree.
XI. GENERAL INJUNCTIVE RELIEF
1. Discrimination Based on Sex
Defendants, their officers, agents, management (including all supervisory employees), successors, assigns, and all those in active concert or participation with them, or any of them, hereby agree not to: (a) discriminate against persons on the basis of sex in the terms and conditions of employment; (b) engage in or be a party to any action, policy or practice that is intended or is known to them to have the effect of harassing or intimidating any employee on the basis of sex; and (c) create, facilitate or permit the existence of a work environment that is hostile to female employees.
Defendants, their officers, agents, management (including all supervisory employees), successors, assigns, and all those in active concert or participation with them, or any of them, hereby agree not to engage in, implement or permit any action, policy or practice with the purpose of retaliating against any current or former employee or applicant of Defendants, or either of them, because he or she has in the past, or during the term of this Decree: (a) opposed any practice made unlawful under Title VII; (b) filed a charge of discrimination alleging such practice; (c) testified or participated in any manner in any investigation (including without limitation, any internal investigation undertaken by any of the Defendants), proceeding in connection with this case and/or relating to any claim of a ...