UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION
October 19, 2012
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
PLAINTIFF, AHMED ELSHENAWY,
SIERRA PACIFIC INDUSTRIES DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
[PROPOSED] CONSENT DECREE
Plaintiff U.S. Equal Employment Opportunity Commission ("Commission" or "EEOC") brought this lawsuit under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, to correct alleged unlawful employment practices on the basis of national origin and retaliation, and to provide appropriate relief to Charging Party Ahmed Elshenawy, who alleged he was adversely affected by such practices. In the interest of resolving this matter the EEOC and Sierra Pacific Industries ("Defendant") (hereinafter referred to as "the Parties") have agreed that the above-captioned lawsuit (the "Lawsuit") should be finally resolved by entry of this Consent Decree.
CONSENT DECREE CV-01470-MCE
This Consent Decree shall not constitute an adjudication and/or a finding on the merits of the Lawsuit. This Consent Decree resolves all claims raised by the EEOC which stem from EEOC Charge No. 370-2005-00641 (Ahmed Elshenawy v. Sierra Pacific Industries) and the EEOC Complaint in this Lawsuit, and constitutes a complete resolution of all claims of discrimination under Title VII that were made or could have been made by the EEOC based on this charge. This Consent Decree does not, however, resolve any future charges or charges that may be pending with the EEOC other than the charge and Complaint specifically referenced in this paragraph. The parties agree that the conditions and terms of this Consent Decree apply to the employees and operations of Defendant's Red Bluff Millwork facility in Red Bluff, California. This Consent Decree comprises the full and exclusive agreement of the EEOC and Defendant with respect to the matters discussed herein. No waiver, modification or amendment of any provision of this Consent Decree shall be effective unless made in writing and approved by all the Parties to this Decree, and any substantive change, modification or amendment of any provision of this Consent Decree shall also require approval by the Court. The Court has reviewed this Consent Decree in light of the pleadings, the record herein, and now approves this Consent Decree.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:
This Court has jurisdiction over the subject matter and the Parties to this Lawsuit. This Court will retain jurisdiction over this Decree for all purposes until the expiration of Defendant's obligations as set forth herein.
This Consent Decree is final and binding upon the Parties, their agents, successors and assigns.The Parties will each bear their own costs and attorney fees in this action.//
II.GENERAL INJUNCTIVE RELIEF: NON-DISCRIMINATION AND NON-RETALIATION
National Origin Discrimination: Consistent with Section 703 of Title VII, 42 U.S.C. §2000e-2, Defendant and its officers, agents, managers (including supervisory employees), successors and assigns, are enjoined from discriminating against persons on the basis of national origin, including harassment.
Retaliation: Consistent with Section 704 of Title VII, 42 USC § 2000e-3, Defendant, its officers, agents, managers (including supervisory employees), successors and assigns, are enjoined from engaging in, implementing or permitting any action, policy or practice with the purpose of retaliating against any current or former employee because he or she has in the past, or during the term of this Consent Decree (a) opposed any practice of harassment or other discriminatory acts on the basis of national origin made unlawful under Title VII; (b) filed a Charge of Discrimination alleging any such practice; (c) testified or participated in any manner in any investigation (including, without limitation, any internal investigation undertaken by Defendant), proceeding or hearing in connection with this Lawsuit; (d) was identified as a possible witness in this Lawsuit; or (e) asserted any rights under this Consent Decree.
III. SPECIFIC INJUNCTIVE RELIEF
1. EEO and Anti-Discrimination Policies: Following a court ordered settlement conference on September 4, 2012, the parties agreed to revisions regarding the company's three Equal Opportunity Policies to include, inter alia, definitions of statutory covered bases, examples of prohibited harassment, time frames for internal complaints of discrimination and statutory time frames for filing charges with the EEOC. A copy of the modified policies in a form consistent with its earlier policies, shall be submitted to the EEOC, attention of Linda Ordonio Dixon, Senior Trial Attorney, within fifteen (15) days of entry of the Consent Decree. If the EEOC does not inform Defendant's counsel of any concerns regarding the modified policies within fourteen (14) days of receipt, the policies shall be deemed compliant with this Consent Decree.
2. Distribution of Policies: Defendant shall effectively disseminate its modified policies and procedures by: (a) distributing copies of the policy to all current employees within forty-five (45) days of the date of entry of this Consent Decree; (b) giving a copy of the policy to all new employees within twenty (20) days of the employees' hire; and requiring each newly hired employee who receives a copy of the policies and procedures to sign a statement acknowledging his or her signature.
3. Training of Employees: During the two-year period from entry of this Consent Decree, Defendant will present training on discrimination, harassment and retaliation, including national origin discrimination harassment and retaliation to all employees, management and non- management, at its Red Bluff Millworks facility, as set-forth in Section III, 4, Training Logistics, below. The first training sessions for all employees shall take place within one hundred twenty (120) days of entry of this Consent Decree. The purpose of said training shall be to give participants an understanding of discrimination issues, particularly national origin discrimination and harassment and retaliation, sources of legal protection for discrimination victims, the employees' obligation to report discrimination, the employer's obligation to take preventive, investigative and remedial action with respect to discrimination complaints, and to review company policies (including discipline policies) and practices related to discrimination and retaliation.
4. Training Logistics: The training for management employees shall be a minimum of two (2) hours each year of this Consent Decree. The training for non-management employees shall be a minimum of one (1) hour during each year of this Consent Decree, and may be conducted in two separate thirty minute training sessions in each of the respective years. The training sessions shall be conducted by individuals with established credentials and/or significant experience in the area of employment discrimination training. Defendant agrees to provide a description of each training program and copies of materials to be used to counsel for the EEOC no later than twenty (20) days before the training programs are scheduled to be held.
5. Acknowledgment of Training Attendance: All persons attending mandatory anti-discrimination training pursuant to this Consent Decree shall sign an acknowledgment of their attendance at the training. Defendant shall retain the originals of these acknowledgments. The EEOC may inspect these documents with ten (10) days notice to Defendant.
6. Reports to the Commission
a. Training Report
Within thirty (30) days of completion of the training required by this Consent Decree, Defendant will send to the EEOC verification of its completion of its discrimination/harassment/retaliation training for its employees.
b. Complaints of Discrimination
For the duration of the Consent Decree, Defendant shall provide to the EEOC the following information for each complaint of national origin and/or retaliation discrimination received at its Red Bluff Millworks facility:
i. Description of complaint
ii. Report of investigation of complaint
iii. Determination and resolution of complaint
iv. Name and contact information of complainant
The first report shall be submitted no later than December 31, 2012. Thereafter, the information shall be submitted on a yearly basis on each anniversary date of the entry of the Consent Decree. Further, Defendant shall maintain all evidence related to each complaint, which will be available for inspection by the EEOC with ten (10) working days notice.
7. Policies Designed to Promote Supervisor Accountability
a. Communication of Potential Discipline for Engaging in National
Origin Harassment and/or Retaliation.
Defendant shall continue to implement and administer its policies which impose appropriate discipline, up to and including termination, suspension without pay or demotion, upon any supervisor or manager who engages in national origin discrimination or knowingly permits any such conduct to occur in his or her work area or among employees under his or her supervision, or who retaliates against any person who complains or participates in any investigation or proceeding concerning such conduct. Defendant shall communicate this policy to all of its supervisors and managers.
b. Communication of Duty to Actively Monitor Worksite.
Defendant will insure that all managers and supervisors are advised of their duty to actively monitor their work areas to ensure employee compliance with Defendant's anti-discrimination policy, and to report any incidents and/or complaints of discrimination and/or retaliation of which they become aware to the individuals charged with handling such complaints.
8. Posting: Defendant shall post for the duration of this Decree, in a prominent place frequented by its employees at its Red Bluff facility, the notice attached as Exhibit A.
IV. MONETARY RELIEF
Defendant shall pay the total gross sum of $95,000 (the "Settlement Payment") as damages to Ahmed Elshenawy and his attorney.Defendant shall cause to be prepared an IRS Forms 1099- misc, checking Box 3 for this sum.
Within ten (10) days following the entry of this Consent Decree, Defendant shall deliver such payment in the form of a business check, cashier's check, or certified check. The payment shall be sent via Federal Express to Ahmed Elshenawy's attorney, Michael Deems. A copy of the payment documents shall be provided to the EEOC.
V. RETENTION OF JURISDICTION AND EXPIRATION OF CONSENT DECREE
a. This Consent Decree shall terminate two (2) years from the date of entry by the Court, unless the Commission petitions this Court for an extension of the Decree because of non- compliance by Defendant. If the Commission determines that Defendant has not complied with the Consent Decree, the Commission will provide Defendant and its counsel written notification of the alleged breach and will not petition the Court for enforcement sooner than thirty (30) days after providing written notification. The thirty-day period following written notice shall be used by the parties for good faith efforts to resolve the issue. If the Commission petitions the Court and the Court finds Defendant to be in substantial violation of the terms of the Decree, the Court may extend this Consent Decree.
b. Except as provided in the preceding paragraph, two (2) years after the entry of this Consent Decree, this lawsuit automatically will be deemed dismissed with prejudice, provided that Defendant has complied substantially with the terms of this Consent Decree. Defendant will be deemed to have complied substantially if the Court has not made any findings or orders during the term of the Decree that Defendant has failed to comply with any of the terms of this Decree. This Consent Decree will automatically expire without further Court Order.
Dated: October 4, 2012 /s/William R. Tamayo William R. Tamayo Attorney for Plaintiff EEOC *as authorized on 10/4/2012 /s/Jonathan T. Peck Jonathan T. Peck Attorney for Plaintiff EEOC *as authorized on 10/4/2012 /s/Linda S. Ordonio-Dixon Linda S. Ordonio-Dixon Attorney for Plaintiff EEOC /s/ Michael R. Deems Michael R. Deems DEEMS & KELLER LLP Attorney for Plaintiff Intervenor Elshenawy *as authorized on 10/4/2012 /s/Shelley C. Addison Shelley C. Addison DUN & MARTINEK LLP Attorney for Defendant SPI *as authorized on 10/4/2012 /s/ Daniel J. Coyle Daniel J. Coyle DOWNEY BRAND LLP Attorney for Defendant SPI *as authorized on 10/4/2012
The foregoing Consent Decree is the order of the court. The Clerk of the Court is hereby directed to
"administratively close" this case.*fn1
IT IS SO ORDERED.
NOTICE To Employees: Red Bluff Millworks
This Notice is being posted pursuant to a Consent Decree in settlement of all claims related to the federal lawsuit Equal Employment Opportunity Commission (EEOC)/Ahmed Elshenawy v. Sierra Pacific Industries. (Civil Action 05-01470 MCE-KJN, Eastern District of California).
The Consent Decree does not constitute an adjudication and/or a finding on the merits of the Lawsuit and should not be construed as an admission of liability by Sierra Pacific Industries. Sierra Pacific Industries and the EEOC each have voluntarily entered into the Consent Decree.
Federal law prohibits an employer from engaging in discrimination which includes national origin, harassment and/or retaliation for raising a complaint of discrimination. Sierra Pacific Industries supports and will comply with such federal law in all respects.
Sierra Pacific Industries will provide anti-discrimination training to its employees pursuant to the Consent Decree.
Any employee who believes he or she has a work place complaint of discrimination should contact his or her immediate supervisor or Human Resources.
Employees have the right to bring complaints of employment discrimination to the United States Equal Employment Opportunity Commission, or the California Department of Fair Employment and Housing.
The EEOC is the federal agency responsible for enforcing the federal laws prohibiting employment discrimination. More information about the EEOC is available at www.eeoc.gov, or (800) 669-4000.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED OR REMOVED BY ANYONE
This notice must remain posted for two years from the date below and must not be altered, defaced or covered by any other material.