The opinion of the court was delivered by: Hon. Edward J. Davila United Stated District Court Judge
(Counsel are listed on the following page)
A. Plaintiff U.S. Equal employment Opportunity Commission ("Commission" or 3 "EEOC") brought this lawsuit under Title VII of the Civil Rights Act of 1964 and Title I of the 4 Civil Rights Act of 1991 to correct alleged unlawful employment practices on the basis of sexual 5 harassment and constructive discharge and to make Deisy Mora, a former employee of WirelessComm, Inc. ("WIRELESSCOMM" or "the Company"). EEOC alleged that 6 WIRELESSCOMM unlawfully subjected Ms. Mora to a sexually hostile work environment 7 which resulted in her constructive discharge from the company.
B. On May15, 2012, the Court issued an order granting Deisy Mora's motion to 9 intervene in the EEOC's lawsuit. Ms. Mora's Complaint-In-Intervention alleged independent 10 11 claims under federal and state laws against WIRELESSCOMM and individual defendants, 12 Lahouari Aribi and Karim Hadid.
C. The Defendants denied the allegations in the EEOC's Complaint and the Complaint-in-Intervention, and denies that it or its employees have violated the law in any way.
D. In the interest of resolving this matter, and as a result of having engaged in 17 comprehensive settlement negotiations, the EEOC, Plaintiff-Intervenor and WIRELESSCOMM 18 ("the Parties") have agreed that this action should be resolved by entry of this Consent Decree. 19 This Consent Decree shall not constitute an adjudication and/or finding on the merits of the case.
E. The Parties agree that this Consent Decree resolves all claims arising out of 21 EEOC Charge Number 556-2008-00372 and the EEOC's investigation of said charge. The 22 Parties further agree that this Consent Decree constitutes a complete resolution of all claims of 23 sexual harassment and constructive discharge under Title VII and the California Fair 24 Employment and Housing Act (FEHA) that were, or could have been raised in the Complaint and the Complaint-In-Intervention stemming from the underlying charge of discrimination.
F. Plaintiff, Plaintiff- Intervenor and WIRELESSCOMM agree that this Consent 26 Decree constitutes a complete resolution of all state law claims arising out of the Plaintiff- 27 Intervenor's employment with WIRELESSCOMM that were raised, or could have been raised, in the Complaint-In-Intervention. Plaintiff-Intervenor will dismiss her claims against defendant, 2 Karim Hadid with prejudice.
G. This Consent Decree comprises the full and exclusive agreement of the Parties 4 with respect to the matters discussed herein. No waiver, modification or amendment of any 5 provision of this Consent Decree shall be effective unless made in writing and approved by all the Parties to this Decree, except that any substantive change, modification or amendment of any 6 provision of this Consent Decree shall require approval by the Court.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the sufficiency of which is hereby acknowledged, IT IS ORDERED, ADJUDGED AND DECREED that:
1. This Court has jurisdiction over the subject matter and the Parties to this action.
This Court will retain jurisdiction over this Decree for all purposes until the expiration of WIRELESSCOMM's obligations as set forth herein.
2. The entry of this Consent Decree will further the objectives of Title VII and will be in the best interest of the Parties and the public.
3. This Consent Decree is final and binding upon the Parties, their successors and assigns.
II.SCOPE OF THE CONSENT DECREE
The duration of the Consent Decree shall be three (3) years from the date of entry of the 21 Decree, provided that WIRELESSCOMM has complied substantially with the terms of this 22 Consent Decree.
WIRELESSCOMM will be deemed to have complied substantially if the Court 23 has not made any finding or orders during the term of the Consent Decree that the Company has 24 failed to comply with any terms of this Consent Decree. During the three-year term of this Consent Decree, this Court shall retain jurisdiction over this matter and the Parties for the 25 purpose of enforcing compliance with the Consent Decree, including issuing such orders as may 26 be required to effectuate its purposes.
III.GENERAL INJUNCTIVE PROVISIONS
A. Discriminatory Harassment:
WIRELESSCOMM and its owners, officers, managers (including supervisory employees), successors and assigns, are enjoined from: (1) discriminating against persons on the basis of sex in the terms and conditions of employment; (2) engaging in or being a party to any action, policy or practice that is intended to or is known to them to have the effect of harassing or 6 intimidating any employee on the basis of sex; or (3) creating, facilitating or, permitting the 7 existence of a sexually hostile work environment at a WIRELESSCOMM location about which 8 it knew or should have known.
WIRELESSCOMM and its owners, officers, managers (including supervisory 12 employees), successors and assigns are enjoined from participating in, engaging in, or 13 14 implementing or permitting any action, policy or practice about which it knew or should have known, the purpose of which is to retaliate against any current or former employee of the 15 16 Company because he or she has in the past, or during the term of this Consent Decree: (1) 17 opposed any practice of harassment or other discriminatory acts on the basis of sex made 18 unlawful under Title VII or the FEHA; (2) filed a Charge of Discrimination alleging any such 19 practice; (3) testified or participated in any manner in any investigation (including, without 20 limitation, any internal investigation undertaken by the Company), proceeding or hearing in 21 connection with this case; (4) testified or participated in any manner in any investigation 22 (including, without limitation, any internal investigation undertaken by the Company), 23 proceeding or hearing in connection with any allegations of unlawful harassment or 24 discrimination which arise during the term of this Consent Decree; (5) was identified as a possible witness in this action; and/or (6) asserted any rights under this Consent Decree.
A. In settlement of the EEOC's and Plaintiff-Intervenor's claims of employment discrimination alleged in the Complaint and Complaint-in-Intervention, shall pay monetary relief to Deisy Mora in the gross amount of $97,000.00 (Settlement Sum).
The Settlement Sum represents compensation for emotional distress, pain and suffering.
B. Defendant WIRELESSCOMM's owner, Lahouari Aribi, has personally guaranteed payment of the Settlement Sum to Deisy Mora in the event that Defendant fails to make timely payments as outlined in paragraph IV.C, below. The personal guaranty is attached as Exhibit A.
C. The Settlement Sum shall be paid as follows:
(1) No later than November 15, 2012, Defendant WIRELESSCOMM shall pay Deisy Mora the first installment of $25,000.00 (twenty five thousand dollars and no cents).
The initial check shall be made payable to the "Law Office of Jonathan Che Gettleman Trust Account" and shall be mailed to Jonathan Che Gettleman, Esq. at 223 River Street, Suite D Santa Cruz, CA 95060. (2) Beginning on December 15, 2012 and continuing on the fifteenth (15th) day of every month for a period of twenty-four months WIRELESSCOMM shall issue a check made payable to "Law Office of Jonathan Che Gettleman Trust Account" in the amount of $3000.00 until the remaining $72,000.00 balance of the Settlement Sum has been paid in full.
The first installment check and every check thereafter shall be mailed to Jonathan Che 18 Gettleman, Esq. at 223 River Street, Suite D Santa Cruz, CA 95060. 19 (3) Each amount paid as part of the Settlement Sum shall be designated by 20 WIRELESSCOMM as "other income" on IRS Form 1099.
D. WIRELESSCOMM shall mail photocopies of each installment check, the IRS 22 forms and related correspondence to the EEOC's counsel of record, Marcia Mitchell, 23 Supervisory Trial Attorney for the EEOC, at 350 The Embarcadero, San Francisco, CA 94105 24 simultaneously with the mailing of the installment checks to counsel for Plaintiff-Intervenor. E. Deisy Mora and her attorneys will not disclose or discuss the terms of the 25 conditions of the settlement without express prior written approval from Defendants, with the 26 exception of disclosure to retained attorneys, spouses, accountants, and other persons as may be 27 required by law.
V.SPECIFIC INJUNCTIVE RELIEF
A. WIRELESSCOMM affirms the following "Statement of Zero-Tolerance Policy and Equality Objectives":
WIRELESSCOMM is firmly committed to maintaining a zero-tolerance policy concerning discriminatory harassment and retaliation against individuals who report harassment in the company's workplace; to swiftly and firmly responding to any acts of harassment and retaliation of which the company becomes aware; to implementing a disciplinary system that is designed to strongly deter future acts of harassment or retaliation; and to actively monitoring its workplace in order to ensure tolerance, respect and dignity for all people.
The preceding paragraph does not create any individual contractual or common law causes of action or other rights that would not otherwise exist under statute.
B. Independent EEO Consultant: No later than December 15, 2012,
WIRELESSCOMM shall contract at its own expense with an Independent EEO consultant to serve as WIRELESSCOMM's agent for the purpose of developing appropriate EEO policies, and for training its owner, supervisors and employees regarding the issue of discriminatory harassment in the workplace and EEO requirements generally. WIRELESSCOMM shall also contract an independent Human Resources consultant for the purpose of enforcing its Equal Employment Opportunity (EEO) policies, administering its complaint procedures, investigating complaints of discrimination, monitoring compliance with anti-discrimination laws, monitoring compliance with the Consent Decree and filing biannual reports with the EEOC.
The Independent EEO consultant must have demonstrated experience in anti-discrimination laws, 22 particularly Title VII and discriminatory harassment, and must have experience investigating 23 allegations of harassment.
(1) WIRELESSCOMM shall submit to the EEOC for its review and consideration the name and curriculum vitae of the proposed Independent EEO consultant and 25 Human Resources consultant at least thirty (30) days before the deadline outlined in the 26 preceding paragraph. The EEOC will notify WIRELESSCOMM within fourteen (14) days of 27 receipt of the proposed consultant's name and curriculum vitae if it has any concerns about the proposed Independent EEO Consultant. The EEOC will review the proposed Independent EEO 2 consultant's and Human Resources consultant's qualifications in good faith and will not reject a 3 candidate without good cause.
(2) The Independent Human Resources Consultant will retain records of all 5 complaints it receives during the pendency of this Consent Decree, its investigation of the complaints and the remedial action taken. The HR Consultant will submit a report regarding any 6 complaints received as outlined in paragraph VIII, below.
C. EEO and Harassment Policies: No later than December 15, 2012, 8 WIRELESSCOMM's Equal Employment Opportunity (EEO) and harassment policies shall be 9 revised such that the policies: (i) include definitions of harassment based on sex and national 10 11 origin; (ii) include examples to supplement the definitions; (iii) provide for substantial and 12 progressive discipline and/or corrective action for incidents of discriminatory harassment; (iv) 13 14 include strong non-retaliation language with examples to supplement the definition of retaliation, (v) provide for substantial and progressive discipline for incidents of retaliation; (vi) provide that 15 16 complaints of harassment and/or retaliation will be accepted irrespective of whether they are 17 made verbally or in writing; (vii) provide a timetable for commencing an investigation and for 18 taking remedial action; and (viii) indicate that WirelessComm will promptly communicate to the 19 complaining party the results of the investigation and the remedial actions taken or proposed, if 20 any.
(1) The revised EEO policies shall be submitted to the EEOC for its review 22 and comments at least thirty (30) days before the anticipated date of implementation. The EEOC 23 will notify WIRELESSCOMM within fourteen (14) days of receipt of the revised ...