The opinion of the court was delivered by: The Honorable Margaret M. MorrowUnited States District Court Judge
SETTLEMENT AND CONSENT DECREE AND [PROPOSED] ORDER THEREON
Plaintiff U.S. Equal Employment Opportunity Commission (hereafter "EEOC" or the "Commission") and Defendant American Apparel (hereafter "American Apparel" or "Defendant") hereby stipulate and agree to the entry of this Settlement and Consent Decree (hereinafter "Agreement") to resolve the EEOC's complaint against Defendant in U.S. Equal Employment Opportunity Commission v. American Apparel, Case No. 10-cv-07280MMM(MANx) (the "Action"). On September 29, 2010, the EEOC filed this Action against American Apparel pursuant to Title I of the Americans with Disabilities Act of 1990 (the "ADA") and Title I of the Civil Rights Act of 1991. In the Action, the EEOC alleges American Apparel discriminated against Charging Party Jose De Los Santos ("Charging Party") by denying him reasonable accommodation and discharging him because of his disability, cancer. American Apparel asserts that it is committed to the implementation of the ADA and denies that it at any time has violated the ADA.
Because each of the parties is committed to full implementation of the ADA, and wish to avoid the expense and uncertainty of further litigation, they have entered into this Agreement.
PURPOSES AND SCOPE OF THE AGREEMENT
A. The Parties to this Agreement are the EEOC and American Apparel. This Agreement shall be binding on and enforceable against the EEOC and American Apparel and their respective officers, directors, agents, successors and assigns.
B. The Parties have entered into this Agreement for the following purposes:
1. To provide appropriate monetary and other injunctive relief;
2. To ensure that American Apparel's employment practices comport with federal law;
3. To ensure training for American Apparel's human resources personnel, managers, supervisors, and employees with respect to their obligations under the ADA*fn1 with an emphasis on reasonable accommodation(s) and request for leave of absences under the ADA to employees with disabilities and equal treatment of employees with care-giving responsibilities;
4. To ensure American Apparel provides effective reasonable accommodation(s), including, but not limited to, request for leave of absence under the ADA, to qualified individuals with a disability;
5. To continue to ensure that no one is subject to retaliation; and
6. To review and update American Apparel's procedures for handling requests for accommodation in the workplace.
A. This Agreement fully and completely resolves all issues, claims and allegations raised in the complaint filed on September 29, 2010 by the EEOC in this Action in the United States District Court, Central District of California, captioned U.S. Equal Employment Opportunity Commission v. American Apparel; Civil Case No. 10-cv-07280 MMM(MANx), and the Answer filed by American Apparel on January 6, 2011.
B. Nothing in this Agreement shall be construed to preclude any party from bringing suit to enforce this Agreement in the event that any party hereto fails to perform the promises and representations contained herein.
C. Nothing in this Agreement shall be construed to limit or reduce American Apparel's obligation to comply fully with the ADA or any other federal employment statute, nor shall anything in this Agreement be construed as imposing duties and obligations upon American Apparel which are not required under the ADA, or any other federal employment statute.
D. This Agreement 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 American Apparel in accordance with standard EEOC procedures.
A. The Court has jurisdiction over the Parties and the subject matter of this Action. The complaint in this Action asserts claims that, if proven, would authorize the Court to grant equitable relief as set forth in this Agreement.
B. The terms and provisions of this Agreement are fair, reasonable and just.
C. This Agreement conforms with the Federal Rules of Civil Procedure and the ADA and is not in derogation of the rights or privileges of any person.
D. The Court shall retain jurisdiction of this Action during the duration of the Agreement for the purposes of entering all orders, judgments and decrees that may be necessary to implement the terms of this Agreement.
EFFECTIVE DATE AND DURATION OF THE AGREEMENT
A. The provisions and agreements contained herein are effective immediately upon the date which this Agreement is approved by the Court ("the Effective Date").
B. Except as otherwise provided herein, this Agreement shall remain in effect for three (3) years after the Effective Date.
MODIFICATION AND SEVERABILITY
A. This Agreement constitutes the complete understanding of the Parties with respect to the matters contained herein. No waiver, modification or amendment of any provision of this Agreement 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 Agreement are rendered unlawful or unenforceable, the Parties shall make good faith efforts to agree upon appropriate amendments to this Agreement in order to effectuate the purposes of the Agreement. In any event, the remaining provisions will remain in full force and effect unless the purposes of the Agreement cannot, despite the Parties' best efforts, be achieved.
C. By mutual agreement of the Parties, this Agreement may be amended or modified in the interests of justice and fairness in order to effectuate the provisions of this Agreement.
COMPLIANCE AND DISPUTE RESOLUTION
A. The parties expressly agree that if either party has reason to believe that the other party has failed to comply with any provision of this Agreement, the complaining party may bring an action before this Court to enforce the Agreement. Prior to initiating such action, the complaining party will notify the other party and its legal counsel of record, in writing, of the nature of the dispute. This notice shall specify the particular provision(s) that the party believes the other party has breached. Absent a showing by either party that the delay will cause irreparable harm, the responding party shall have forty five (45) days to attempt to resolve or cure the alleged breach, however, the parties can agree to extend this period upon mutual consent.
B. The parties agree to cooperate with each other and use their best efforts to resolve any disputes regarding compliance with this Agreement.
C. After forty five (45) days have passed with no resolution or agreement to extend the time further, the complaining party may petition Magistrate Judge Margaret A. Nagle for resolution of the dispute, seeking all available relief, including an extension of the term of the Agreement for such period of time, and/or other relief that the Court deems appropriate. Any party dissatisfied with Magistrate Judge Nagle's decision or orders may seek review and appeals as in any other civil case addressed by a Magistrate Judge.
MONETARY AND VICTIM SPECIFIC RELIEF
A. Monetary Relief for Claimant
1. In settlement of this lawsuit, American Apparel shall pay Jose De Los Santos $40,000 (the "Settlement Amount"). $20,000 of the Settlement Amount shall be paid within ten (10) days of the Effective Date of this Agreement via certified mail payable to Jose De Los Santos. The balance of $20,000 of the Settlement Amount shall be paid no later than 180 days after the Effective Date of this Agreement via certified mail payable to Jose De Los Santos. Within five (5) days of the Effective Date of this Agreement, the EEOC shall forward to American Apparel De Los Santos' address.
The Settlement Amount shall be designated as non-wage compensation under the ADA, and no tax withholding shall be made. American Apparel shall prepare and distribute 1099 tax reporting form to Jose De Los Santos and shall make appropriate reports to the Internal Revenue Service.
Within three (3) business days of the issuance of the settlement checks, American Apparel shall submit copies of the checks 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.
B. Claimant's Specific Relief
1. American Apparel agrees to purge Jose De Los Santos' employment records of any negative warnings, disciplines, or other negative references during the time of his employment with American Apparel.
2. If an inquiry is made into Jose De Los Santos' employment history, the only information that shall be disclosed will be the dates of employment and the positions he held, and that his job performance was satisfactory. American Apparel shall designate Jose De Los Santos' separation from employment as a termination due to a reduction in force.
American Apparel, its officers, agents, management ...