Opinion
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Anna Y. Park, Attorneys for Plaintiff EEOC.
CONSENT DECREE
LAWRENCE J. O'NEILL, District Judge.
Plaintiff United States Equal Employment Opportunity Commission ("EEOC" or "Plaintiff") and Defendant Zoria Farms Inc. ("Defendant"), including John and Nina Zoria, hereby stipulate and agree to the entry of this Consent Decree ("Decree") to resolve the Commission's complaint against Defendant in U.S. Equal Employment Opportunity Commission v. Zoria Farms Inc., et al., Case No. 1:13-CV-1544 LJO SKO (the "Action"). On September 24, 2013, Plaintiff filed this Action in the United States District Court, Eastern District of California, for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). The Action alleges Defendants Zoria Farms, Inc. and Z Foods, Inc. violated Title VII by unlawfully subjecting Rosa Mendez and similarly situated female employees and a class of male employees (hereinafter "Claimants") to sexual harassment, retaliation for engaging in protected activity, and retaliation for their association with employees who engaged in protected activity.
I. PURPOSES AND SCOPE OF THE DECREE
A. The parties to the Decree are EEOC and Defendant Zoria Farms, Inc., John and Nina Zoria (collectively, the "Parties"). The Parties agree that the Action against Zoria Farms Inc. should be fully and completely resolved by entry of the Consent Decree. This Decree does not resolve the EEOC's claims against Z Foods Inc. This Decree shall be binding on and enforceable against Defendant Zoria Farms, Inc., parents, subsidiaries, officers, and directors.
B. The Parties have entered into this Decree for the following purposes:
1. To provide appropriate monetary and injunctive relief;
2. To ensure that Defendant's employment practices comply with federal law;
3. To ensure a work environment free from discrimination;
4. To ensure training for Defendant's managers and employees with respect to the pertinent laws regarding gender discrimination/harassment and retaliation; and
5. To provide an appropriate and effective mechanism for handling complaints of gender discrimination/harassment and retaliation in the workplace.
II. RELEASE OF CLAIMS
A. This Decree fully and completely resolves and releases all issues, claims, allegations, and complaints raised by the EEOC on behalf of the claimants against Defendant Zoria Farms Inc. This Consent Decree resolves any and all claims as to Zoria Farms Inc. only, including shareholders and officers of Zoria Farms Inc.
B. Nothing in this Decree shall be construed to preclude any party from bringing suit to enforce this Decree in the event that any party hereto fails to perform the promises and representations contained herein.
C. Nothing in this Decree shall be construed to limit or reduce Defendant's obligation to comply fully with Title VII or any other federal employment statute.
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 Defendant in accordance with standard EEOC procedures. This Decree shall in no way hinder or affect an individual's right to file a charge with the EEOC or applicable state agency, participate in a federal or state investigation, or the EEOC's investigation and determinations into such charges.
III. JURISDICTION
A. The Court has jurisdiction over the Parties and the subject matter of this Action. The Action asserts claims that, if proven, would authorize the Court to grant the equitable relief set forth in this Decree.
B. The terms and provisions of this Decree are fair, reasonable, and just.
C. This Decree conforms with the Federal Rules of Civil Procedure and Title VII 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 Decree for the purposes of entering any order, judgment, or decree that may be necessary to implement the relief provided herein.
IV. EFFECTIVE DATE AND DURATION OF DECREE
A. The provisions and agreements contained herein are effective immediately upon the date in which this Decree is entered by the Court ("the Effective Date").
B. Except as otherwise provided herein, this Decree shall remain in effect for five (5) years after the Effective Date.
V. 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 of the 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. In any event, the remaining provisions will remain in full force and effect unless the purposes of the Decree cannot, despite the Parties' best efforts, be achieved.
C. By mutual agreement of the Parties, this Decree may be amended or modified in the interests of justice and fairness in order to effectuate the provisions of the Decree.
VI. COMPLIANCE AND RESOLUTION
A. The Parties agree that if the EEOC has reason to believe that Defendant has failed to comply with any provision of this Decree, the EEOC may bring an action before this Court to enforce the Decree. Prior to initiating such action, the EEOC will notify Defendant and its legal counsel of record, in writing, of the nature of the dispute. This notice shall specify the particular provision(s) that the EEOC believes Defendant has breached. Defendant shall have ten (10) days to attempt to resolve or cure the breach. However, the Parties may agree to extend this period upon mutual consent.
B. After thirty (30) days, inclusive of the ten (10) days to resolve or cure the breach referenced in Section VI.A, have passed with no resolution or agreement to extend the time further, the EEOC may petition this Court for resolution of the dispute. The EEOC may seek all available relief, including an extension of the term of the Decree for such period of time that the Court finds the Decree was not complied with and/or any other relief that the Court may deem appropriate.
VII. MONETARY RELIEF
A. In settlement of this lawsuit, John and Nina Zoria shall establish a fund in which they shall pay a total of $330,000 (three hundred and thirty thousand dollars). An initial payment of $100,000 (one hundred thousand) shall be paid to the fund by June 1, 2015. A second payment of $230,000 (two hundred and thirty thousand) shall be paid to the fund by July 31, 2015. Allocation of the monetary relief to the Claimants shall be at the sole discretion of the EEOC.
B. The EEOC shall inform Defendant the distribution of the monetary relief. Within seven (7) days after being informed of the allocation, Defendant shall forward to the claimants identified by the EEOC via certified mail a check for the full amount in the amounts specified by the EEOC.
C. Defendant shall prepare and distribute Form 1099 or equivalent tax reporting forms to claimants identified by the EEOC and shall make the appropriate reports to the Internal Revenue Service and other tax authorities. Within three (3) business days of the issuance of the settlement check, Defendant shall submit a copy of the check and related correspondence to Anna Y. Park, Regional Attorney, U.S. Equal Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, California, 90012.
VIII. GENERAL INJUNCTIVE RELIEF
A. Anti Discrimination
Defendant, its officers, agents, management (including all supervisory employees), successors, and assigns, are hereby enjoined from: (a) engaging in harassment of any person(s) on the basis of his/her gender; (b) engaging in or being a party to any action, policy, or practice that discriminates and/or creates a hostile work environment on the basis of any employee's sex; and/or (c) creating, facilitating, or permitting the existence of a work environment that is hostile to employees on the basis of sex.
B. Retaliation
Defendant, its officers, agents, management (including all supervisory employees), successors, assigns and all those in active concert or participation with them, or any of them, are hereby enjoined to not engage in, implement, or permit any action, policy or practice that retaliates against any current or former employee or applicant of Defendant or its successors because he/she has in the past, or during the term of this Decree, either: (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 Defendant or its successors) or proceeding in connection with this Action or relating to any claim of a Title VII violation; (d) been identified as a possible witness or claimant in this Action; (e) asserted any rights under this Decree; (f) sought and/or received any relief in accordance with this Decree; or (g) are associated with an employee who has engaged in the activities set forth in Section VIII(B).
IX. SPECIFIC INJUNCTIVE RELIEF
A. Equal Employment Opportunity Monitor
1. Within sixty (60) days after the Operational Date, defined in Section IX.F. below, Defendant shall retain a third party Equal Employment Opportunity Monitor ("Monitor") with demonstrated experience in areas of employment discrimination and retaliation. The Monitor shall monitor Defendant's compliance with Title VII and the provisions of this Decree.
2. The Monitor shall be subject to the EEOC's approval, which shall not be unreasonably withheld. The EEOC shall provide Defendant with a list of at least three (3) suggested candidates acceptable to the EEOC and from which Defendant shall select the Monitor. Defendant shall bear all costs associated with the selection and retention of the Monitor and the performance of his/her duties. Should the Monitor be unable or unwilling to continue as Monitor for the duration of the Decree, the procedures set forth in IX.A.1 shall also apply to the selection of a new Monitor.
3. The Monitor's responsibilities shall include:
a. Reviewing and revising Defendant's policies and procedures, including its complaint procedures, relating to discrimination and retaliation, to ensure that they fully comply with Title VII and the requirements set forth in this Decree;
b. Ensuring Defendant's compliance with the terms of the Decree;
c. Ensuring Defendant maintains policies and procedures that effectively carry out its obligations under Title VII and this Decree;
d. Ensuring that all employees are trained on their rights and responsibilities under Title VII and this Decree, including but not limited to Defendant's responsibilities and policies regarding harassment and retaliation;
e. Ensuring that all employees are trained on how to complain regarding harassment and retaliation as well as monitoring Defendant's investigation into such information;
f. Ensuring Defendant has procedures in place to promptly and effectively handle complaints of harassment and retaliation;
g. Monitoring Defendant's investigations to:
i. Ensure that investigations are conducted in an effective manner;
ii. Ensure that Defendant properly communicates with complainants regarding the complaint procedure, status of the investigation, results of the investigation, and any remedial action taken; and
iii. Ensure that Defendant adequately monitors the workplace after complaints to ensure no retaliatory actions are taken against the complainant.
h. Ensuring that Defendant creates a centralized system of tracking discrimination, harassment, and retaliation complaints, as required by this Decree;
i. Preparing a semi-annual report to the EEOC on Defendant's progress and its compliance under this Decree;
j. Providing updates to the EEOC regarding Defendant's compliance with the terms of the Decree; and
k. Ensuring that all reports required by this Decree are accurately compiled and timely submitted.
B. Policies and Procedures
Within thirty (30) days of the Operational Date, Defendant shall review, revise, implement, and distribute its companywide policies and procedures regarding employment discrimination prohibited by Title VII (the "Policy") in English and Spanish.
1. Revision of Policy
Within thirty (30) days of the Operational Date, Defendant, with the assistance of its Monitor, shall review and, if necessary, revise its policy on discrimination and retaliation. The revised policy shall include:
a. A clear explanation of prohibited conduct under the Policy, including an explanation that harassment and discrimination on the basis of race, color, national origin, sex, age, disability, creed/religion, or any other protected class, and retaliation is prohibited with a particular emphasis that the company will not tolerate any incidents of sexual harassment or retaliation;
b. An assurance that employees who make complaints of harassment/discrimination or provide information related to such complaints will be protected against retaliation;
c. A clearly described complaint process that provides accessible and confidential avenues for complaints, including information regarding an internal and external person whom employees may report incidents of discrimination and retaliation;
d. An assurance that Defendant will protect the confidentiality of complainants to the extent possible from being disclosed to those persons who do not need to know;
e. Assurances that the complaint process will include a prompt, thorough, and impartial investigation;
f. A procedure for communicating with the complainant regarding the status of the complaint/investigation, results of the investigation, and any remedial action taken;
g. An instruction that supervisors and managers shall report to human resource personnel incidents of harassment, discrimination, or retaliation that they witness or are aware of; and
h. Assurances that Defendant will take immediate and appropriate corrective action if it determines that harassment/discrimination and/or retaliation has occurred.
2. Procedure for Tracking Complaints
Defendant further agrees that the Policy described in Section IX.B.1 shall describe the process by which Defendant's employees will handle complaints of discrimination. The Policy shall at minimum provide that (1) upon a complaint by an employee or any other form of notice, the employee receiving the complaint shall inform their immediate supervisor and Human Resources; (2) Human Resources shall conduct a prompt and thorough investigation of all complaints, including but not limited to interviewing the complaining party/victim, the alleged perpetrator, and all available or identifiable witnesses; (3) Human Resources shall regularly meet with and update the complaining party/victim of the status of the investigation; (4) Human Resources and Defendant's employees shall take all reasonable steps to maintain confidentiality; (5) at the conclusion of the investigation, Defendant shall take all appropriate steps to remedy and prevent future incidents of discrimination, harassment, and retaliation; and (6) Defendant shall monitor the work place subsequent to the investigation to ensure that no retaliatory acts have been taken against the complaining party/victim. Defendant further agrees to implement, with the assistance of the Monitor, a centralized system for tracking, gathering, and retaining discrimination, harassment, and retaliation complaints.
3. Distribution of Policy
Within forty-five (45) days of the Operational Date of this Decree, Defendant shall provide to the EEOC a copy of the revised Policy. Within sixty (60) days of the Operational Date and annually thereafter, Defendant shall ensure that it has distributed the Policy to all employees in a language the employee understands. Within seventy-five (75) days of the Operational Date, Defendant shall submit to the EEOC a statement confirming the distribution of the Policy.
Within thirty (30) days of the hire date of any person hired after the initial distribution but within the term of the Decree, Defendant shall ensure that it has distributed the Policy to that employee in a language the employee understands. On an annual basis for the duration of the Decree, Defendant shall submit to the EEOC a statement confirming the distribution of the Policy to any person hired after the initial distribution but within the term of the Decree.
Within sixty (60) days of the Operational Date, Defendant shall ensure that it has physically posted the Policy in legible font in English and Spanish. The Policy shall be posted in a conspicuous place at all Defendant's facilities in an area accessible to all employees. Within seventy-five (75) days of the Operational Date, Defendant shall submit to the EEOC a statement confirming the posting of the Policy.
C. Performance Evaluations
Within thirty (30) days of the Operational Date, Defendant shall create a provision in the annual performance evaluation of its managers, supervisors, and human resources personnel to hold individuals accountable for failing to appropriately remedy or report incidents of harassment/discrimination, or retaliation for engaging in harassment/discrimination or retaliation, and for failing to comply with Defendant's policies and procedures regarding harassment, retaliation, or discrimination.
D. Posting of Notice of Consent Decree and Settlement
Within thirty (30) days of the Operational Date and for the duration of the Decree, Defendant shall ensure that it has posted the Notice of Consent Decree and Settlement (attached to this Decree as Attachment A) in a conspicuous place accessible at all of Defendant's facilities. Within thirty (30) days of the Operational Date and annually thereafter, Defendant shall submit to the EEOC a statement confirming the posting of the Notice of Consent Decree and Settlement.
E. Training
1. Training of All Employees
Within sixty (60) days of the Operational Date and annually thereafter, Defendant shall provide training, lasting at least one hour in duration to all Defendant's employees. The training shall be in a language the employees understand and shall cover the Policy, Defendant's complaint process, and federal laws regarding employment discrimination with a particular emphasis on gender discrimination/harassment and retaliation. The training shall be in person and have interactive components. Where an employee is unable to attend the scheduled training, Defendant shall provide a live training at an alternative session within sixty (60) days of the training. All persons required to attend such training shall verify their attendance in writing.
Within sixty (60) days of the hire date of any non managerial employee hired after the annual training but within the term of the Decree, Defendant shall provide a live training of at least one hour duration. The training shall be in a language employees understand and shall cover the Policy, Defendant's complaint process, and federal laws regarding employment discrimination with a particular emphasis on gender discrimination/harassment and retaliation. All persons required to attend such training shall verify their attendance in writing.
2. Managerial Training
Within sixty (60) days of the Operational Date and annually thereafter, Defendant shall provide an additional training to managers, supervisors, hiring officials, and human resources or compliance staff members. The training shall be at least one hour in duration and be in a language employees understand. The live and interactive training shall cover: manager's obligations and responsibilities under Defendant's Policy, Defendant's complaint process and procedures, procedures and steps supervisors and managers shall take in responding to incidents of discrimination or retaliation which they become aware of, and federal laws regarding employment discrimination. Where an employee is unable to attend the scheduled training, Defendant shall provide a live training at an alternative session within sixty (60) days of the training. All persons required to attend such training shall verify their attendance in writing.
Within sixty (60) days of the hire date of any manager, supervisor, hiring official, or human resources/compliance staff member hired after the annual training, Defendant shall provide a live training of at least one hour duration in a language the employee understands. The training shall cover the Policy, Defendant's complaint process, and federal laws regarding employment discrimination with a particular emphasis on gender discrimination/harassment and retaliation. Where a manager, supervisor, or human resource personnel misses or is unable to attend the scheduled training, Defendant shall provide the live training at an alternative session within sixty (60) days of the training. All persons required to attend such training shall verify their attendance in writing.
3. Verification
Within ninety (90) days of the Operational Date and annually thereafter, Defendant shall produce to the EEOC documents verifying the occurrence of all training sessions conducted as required under this Decree, including the written training materials used, a description of the training provided, a list of the individuals who conducted the training, and a list of the names and job titles of attendees at each training session.
The EEOC shall have the right to attend the trainings described in the Decree. Thirty (30) days prior to any training, Defendants shall provide written notice to EEOC including the time, location, name and contact information of the trainer. The written notice shall be sent via U.S. Mail to the attention of Anna Y. Park, Regional Attorney, U.S. Equal Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, California, 90012.
F. Operational Date
The provisions contained in Section IX shall only be effective upon the date John and/or Nina Zoria become owners, operators, or otherwise have controlling interest of a business which employs more than fifteen (15) employees, as defined in Title VII (the "Operational Date"). Within fifteen (15) days of the Operational Date, Defendant shall provide written notice of the existence of the business, including the name and address of the business along with any applicable filings with the Secretary of State, to Anna Y. Park, Regional Attorney, U.S. Equal Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, California, 90012.
G. Record Keeping
Within thirty (30) days of the Operational Date, Defendant shall establish a record-keeping procedure that provides for the centralized tracking of harassment complaints as well as the monitoring of such complaints, including the identities of the parties involved. The records to be maintained shall include all documents generated through the duration of the Decree in connection with Defendant's compliance with the Decree, any complaints regarding harassment, any investigation into the complaint, and any resolution of the complaint. Defendant shall also track records of the complaint to enable the Monitor to identify any repeat offenders and supervisors who repeatedly fail to prevent and correct discrimination or retaliation. Defendant shall make such records available for the EEOC's inspection within thirty (30) days of the EEOC's written request.
H. Reporting
The Monitor shall regularly report throughout the duration of the Decree to the EEOC about Defendant's compliance with the terms of the Decree. Defendant through the Monitor shall also prepare a semi-annual report on Defendant's progress and its compliance under this Decree. Additionally, Defendant through the Monitor shall provide the following semi annual reports to the EEOC:
1. The attendance lists for all training sessions required under this Decree that occurred since the previous report;
2. Acknowledgments of receipt of the Policy for all employees hired since the previous report;
4. A description of all gender discrimination, harassment, and/or retaliation complaints made since the submission of the immediately preceding report hereunder. This description shall include the names of the individuals alleging discrimination or retaliation; the nature of the complaint; the names of the alleged perpetrators of discrimination or retaliation, including whether the alleged perpetrator has been the subject of any previous complaints of harassment or discrimination; the dates of the alleged discrimination or retaliation; a brief summary of how each complaint was resolved; the identity of the employee(s) who investigated and/or resolved each complaint; and the identities of any supervisor, human resource personnel, or other individual involved in making any determinations about the complaint. Defendant shall also identify any individuals accused who have been either the subject of more than one complaint of harassment or discrimination. If no results have been reached as of the time of the report, the result shall be included in the next report;
5. Verification that the Notice of Consent Decree and Settlement and Policy continue to be posted in a conspicuous place accessible to all employees;
6. A summary of the procedures and record keeping methods developed for the centralized tracking of gender discrimination, harassment, and retaliation complaints and the monitoring of such complaints;
7. The status of Defendant's compliance with the terms of the Decree; and
8. Whether any revisions of Defendant's policies and procedures regarding discrimination, retaliation, and harassment have been revised, including a copy of the revised policies or procedures.
X. MISCELLANEOUS PROVISIONS
A. During the term of this Decree, Defendant shall provide any potential successor-in-interest with a copy of this Decree within a reasonable time of not less than thirty (30) days prior to the execution of any agreement for acquisition or assumption of control of any of all of Defendant's facilities, or any other material change in corporate structure. Defendant shall simultaneously inform the EEOC of any such agreement for acquisition, assumption of control, or other material change in corporate structure.
B. During the term of this Decree, Defendant shall assure that each of its officers, managers, and supervisors is aware of any term(s) of this Decree which may be related to his/her job duties.
C. Unless otherwise stated, all notices, reports and correspondence required under this Decree shall be delivered to the attention of Anna Y. Park, Regional Attorney, U.S. Equal Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, California, 90012; facsimile number (213) 894-1301.
D. This Decree may be signed in counterparts. A facsimile signature shall have the same force and effect of an original signature or copy thereof.
XI. COSTS AND ATTORNEYS' FEES
Defendant shall bear all costs associated with its administration and implementation of its obligations under this Decree, including but not limited to the distribution of the settlement money. Each party shall bear its own costs of suit and attorneys' fees.
All Parties, through the undersigned, respectfully apply for and consent to the entry of this Consent Decree Order.
ORDER
GOOD CAUSE APPEARING:
The Court hereby finds that compliance with all provisions of the foregoing Decree is fair and adequate. The Court hereby retains jurisdiction for the term of the foregoing Consent Decree, and the provisions thereof are hereby approved.
IT IS SO ORDERED.