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U.S. Equal Employment Opportunity Commission v. Aqua Tri

September 27, 2011

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
AQUA TRI, POOL WATER PRODUCTS, AND DOES 1-10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: The Honorable George H. King U.S. District Court Judge

[PROPOSED] CONSENT DECREE

I. INTRODUCTION

Plaintiff U.S. Equal Employment Opportunity Commission (the "EEOC") and Defendants Aqua Tri and Pool Water Products (hereinafter collectively "Defendants") hereby stipulate and agree to entry of this Consent Decree ("Decree") to resolve the above-captioned enforcement action (the "Action") filed by the EEOC under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). The EEOC and Defendants are collectively referred to herein as the "Parties."

A. On September 29, 2009, the EEOC initiated the Action by filing its Complaint against Aqua Tri. The EEOC alleged that certain charging parties and other similarly situated individuals were subjected to unlawful employment practices because of sex and/or retaliation in violation of Sections 703(a) and 704(a) of Title VII. On May 11, 2010, the EEOC filed its First Amended Complaint adding Pool Water Products as an additional defendant.

B. On December 29, 2009, Aqua Tri filed its Answer to the EEOC's Complaint, denying all material allegations. On May 27, 2010, Aqua Tri and Pool Water Products filed their Answer to the EEOC's First Amended Complaint, denying all material allegations.

C. In the interest of resolving this matter, and as a result of having engaged in comprehensive settlement negotions and private mediation on November 15, 2010, and December 3, 2010, the Parties have agreed that the Action should be finally resolved by entry of this Decree.

D. This Decree is final and binding upon the Parties, their agents, successors, and assigns.

E. The Parties agree that this Decree resolves any and all claims arising out of the underlying Complaint and First Amended Complaint, as well as any and all allegations arising in the Action.

II. PURPOSES AND SCOPE OF THE CONSENT DECREE

A. In the interest of resolving this matter, the Parties have agreed that this Action should be finally settled by entry of this Decree. The Parties have entered into this Decree in order to:

1. provide monetary and injunctive relief;

2. ensure that Aqua Tri's employment practices comply with Title VII;

3. ensure a work environment at Aqua Tri that is free from sex discrimination, sexual harassment and retaliation;

4. ensure training for managers, supervisors, leads, human resource and other employees of Aqua Tri with respect to their obligations and rights under Title VII;

5. provide an effective mechanism at Aqua Tri for receiving and handling discrimination, harassment and retaliation complaints;

6. avoid expensive and protracted costs incident to litigation; and

7. provide a final and binding settlement as to all claims and allegations made in, and arising out of, this Action and as to all persons receiving monetary payments under the Decree.

B. This Decree shall not be interpreted as an express or implied determination that the current policies, practices, or procedures of Defendants either do or do not comply with Title VII.

C. This Decree is intended to resolve disputed claims and is not an adjudication or finding that Defendants have violated Title VII or any other federal employment statute. Defendants deny that they have engaged in any violations of Title VII or any other federal employment statute and Defendants' agreement to enter into this Decree is not intended to and should not be construed as an admission by Defendants of any violation or liability for the claims alleged.

III. RELEASE OF CLAIMS; DISMISSAL OF DEFENDANT POOL WATER PRODUCTS

A. This Decree completely and finally resolves all issues, claims and allegations made in, and arising out of, the EEOC's Complaint and First Amended Complaint filed in this Action in the United States District Court, Central District of California, and captioned U.S. Equal Employment Opportunity Commission v. Aqua Tri, Pool Water Products, and DOES 1-10, Inclusive; Case No. 09-CV-7062-GHK(VBKx), and constitutes a complete resolution of all claims of sexual harassment and retaliation that were made by the EEOC in this Action. The Decree also completely and finally resolves all issues, claims and allegations made in, and arising out of, (1) EEOC charge of discrimination Nos. 480-2008-04571, 480-2009-00504, 480-2009-01378, 480-2009-01387, 480-2009-01388, 480-2009-01389, and 480-2009-02515, as well as any amendments to those charges; and (2) any other charges of discrimination which allege violations of Title VII by Aqua Tri filed with the EEOC prior to the Effective Date by any individual who receives monetary relief under this Decree (the "Charges of Discrimination").

B. Nothing in this Decree shall be construed to preclude the EEOC from bringing suit to enforce the terms of this Decree in accordance with its enforcement provisions.

C. Nothing in this Decree shall be construed to limit or reduce Defendants' obligations to comply fully with Title VII or any other federal anti-discrimination statute.

D. This Decree in no way affects the EEOC's right to bring, process, investigate or litigate other charges of discrimination unrelated to this Action that may later arise against Defendants, but are now unknown to the EEOC and unrelated to this Action.

E. The Action as to Pool Water Products is dismissed with prejudice in its entirety and with each side to bear its own costs and attorneys' fees. The EEOC agreed to dismiss with prejudice Pool Water Products based upon Pool Water Products' and Aqua Tri's agreement to make Aqua Tri's Human Resources independent of Pool Water Products' Human Resources, and Aqua Tri's retention of a Human Resources Representative as provided in Section X(H), infra. Notwithstanding this dismissal with prejudice, Pool Water Products must ensure training of Greg Edman, and/or his successor, as set forth in Section X(G)(5), infra.

IV. JURISDICTION

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 with the Federal Rules of Civil Procedure and Title VII and is not in derogation of the rights and privileges of any person. Entry of this Decree will further the objectives of Title VII and will be in the best interest of Aqua Tri, Pool Water Products, the EEOC, and those for whom the EEOC has sought relief.

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

V. EFFECTIVE DATE AND DURATION OF DECREE

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

B. Except as otherwise provided herein, this Decree shall remain in effect for three (3) years after the Effective Date. Upon recommendation of the Equal Employment Opportunity Consultant identified in Section X(B), infra, made at any time more than twenty-four (24) months after the Effective Date, the EEOC in its sole discretion may reduce the Decree term to 2.5 years and so notify the Court. The EEOC agrees not to unreasonably refuse such a recommendation by the Equal Employment Opportunity Consultant.

VI. DECREE ENFORCEMENT

A. If the EEOC has reason to believe that Aqua Tri has in any way failed to comply with any provision of this Decree, the EEOC may file a motion before this Court to enforce the Decree. Before filing such a motion, however, the EEOC shall notify Aqua Tri and its legal counsel, in writing, of the nature of the dispute. This notice shall (1) specify the particular provision(s) with which the EEOC believes Aqua Tri has failed to comply; (2) provide a brief description of how Aqua Tri failed to comply; and (3) to the extent an appropriate remedy is readily identifiable to the EEOC at the time that the EEOC gives notice of the potential violation, the EEOC will identify possible remedies. Absent a showing that the delay will cause irreparable harm to a current and/or former employee or applicant of Aqua Tri, Aqua Tri shall have thirty (30) days from the date of notice ("Dispute Resolution Period") to attempt to resolve or cure the alleged breach in a manner satisfactory to all Parties.

B. The Parties agree to cooperate with each other and use their best efforts to resolve any claimed non-compliance with the terms of the Decree, including meetings between the Equal Employment Opportunity Consultant and representatives of Aqua Tri and the EEOC, if necessary.

C. After the Dispute Resolution Period has passed with no resolution or agreement to extend the time further, the EEOC may petition the Court for resolution of the dispute. Upon a showing made by the EEOC that is approved by the Court, that a Dispute Resolution Period would cause irreparable harm to an employee or applicant of Aqua Tri, the EEOC may immediately file a motion to enforce the Decree. Where there is no such showing, the EEOC may file a motion to enforce the Decree only after the expiration of the Dispute Resolution Period.

VII. MODIFICATION AND SEVERABILITY

A. This Decree constitutes the complete understanding of the Parties with respect to the matters contained herein. By the Parties' mutual agreement, this Decree may be amended or modified in the interests of justice and fairness in order to effectuate the provisions of the Decree. No waiver, modification or amendment of any provision of this Decree shall be effective unless made in writing and signed by an authorized representative of each Party and approved by the Court.

B. If one or more provisions of this Decree are rendered unlawful or unenforceable, the Parties shall make good faith efforts to agree upon the appropriate amendments to this Decree necessary to effectuate its purposes. If the Parties are unable to reach agreement, the Court shall order the appropriate alternative provisions necessary to effectuate the purposes of the Decree. Should one or more provisions of this Decree be deemed unlawful, all other provisions shall remain in full force and effect.

VIII. MONETARY RELIEF

A. Aqua Tri shall pay a total of $462,500 (the "Settlement Fund"), to be distributed, at the sole discretion of the EEOC, amongst the claimants identified by the EEOC to counsel for Defendants (collectively, "Claimants").

B. Prior to entry of the Decree, the EEOC has provided Aqua Tri with a complete and final list of all Claimants specifying each Claimant's portion of monetary relief, and identifying information for distribution of monetary relief, including name, address, and taxpayer identification number and a duly executed W-9 form signed by each Claimant designated to receive a portion of the monetary relief under the Decree. Each Claimant and Aqua Tri have entered into a separate release of Title VII claims to which the EEOC is not a party.

C. Aqua Tri shall send a check, 1099 form and similar State of California tax reporting form, via certified mail, to each Claimant in the amount specified by the EEOC within thirty (30) days of the Effective Date.*fn1

D. The monies to be paid to the Claimants are to be designated as non-wage compensation under Title VII and no tax withholding shall be made. Aqua Tri shall prepare and distribute 1099 forms and similar State of California tax reporting forms to each Claimant as set forth in the distribution list provided by the EEOC. Aqua Tri shall be solely responsible for any costs associated with the issuance and distribution of 1099 tax reporting forms to Claimants. Claimants shall be solely responsible for taxes payable, if any, on their respective portion of settlement proceeds. Neither the EEOC nor Defendants make any representation, or assume any responsibility for any tax liability, assessments, interest, penalties, and/or costs that the Claimants may or may not incur on such payments under local, state and/or federal law.

E. Within fourteen (14) days of the issuance of each settlement check and any 1099 form, Aqua Tri shall mail 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.

F. If for any reason any portion of the Settlement Fund cannot be distributed to a Claimant as designated by the EEOC, the Parties shall meet and confer in good faith and select a cy-pres charity to receive the residual amount left in the Settlement Fund.

IX. CLAIMANT SPECIFIC INJUNCTIVE RELIEF

Within sixty (60) days of the Effective Date of this Decree, Aqua Tri shall:

A. remove from the personnel files of each Claimant any references to the Charges of Discrimination filed against Aqua Tri or the Claimant's participation in this Action;

B. to the extent that Aqua Tri maintains records of the Charges of Discrimination or any Claimant's involvement in the Action, any such records shall be maintained separately from Claimants' personnel files;

C. unless required by law or court order, refrain from providing any information about Claimants to anyone other than to verify whether the identified Claimant was employed by Aqua Tri, the last position in which the Claimant was employed, and the duration of employment with Aqua Tri;

D. to the extent that a Claimant continues to work for Aqua Tri, ensure that the Claimant does not suffer discrimination, harassment, or retaliation, as provided Section X(A)(2), infra;

E. reclassify the termination of Claimant Carlos Hinosa Serreno as a voluntary resignation rather than a termination; and

F. provide a $1.00 per hour prospective increase in pay to Claimant Alicia Flores within fourteen (14) days of the Effective Date, ensure subsequent increases in pay and/or promotion by applying standards as applied to all candidates and/or applicants, and ensure that Flores is not subject to retaliation.

X. GENERAL INJUNCTIVE RELIEF

A. Non-Discrimination and ...


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