Opinion
Civil Action No. C 02-4717 CRB.
May 20, 2003.
Gwendolyn Young Reams, Acting Deputy General Counsel, William R. Tamayo, Regional Attorney, Jonathan T. Peck, Supervisory Trial Attorney, Linda S. Ordonio-Dixon, Trial Attorney, Equal Employment Opportunity Commission, San Francisco, California, Attorney for Plaintiff.
Kathleen A. McCormac, Lori P. Potter, McCormac Assoc., San Francisco, CA, Attorney for Defendant.
CONSENT DECREE
I. INTRODUCTION
Plaintiff Equal Employment Opportunity Commission (EEOC) filed this suit under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 based on an EEOC Charge of Discrimination filed by Shannon Craine against defendant BORAGGIO RESTAURANT, INC., dba CHENERY PARK RESTAURANT (Chenery Park). The EEOC alleges that Chenery Park unlawfully retaliated against Ms. Craine by suspending then terminating her when she complained of sexual harassment in Defendant's restaurant. Chenery Park denies Ms. Craine's claims and alleges that Mr. Craine was suspended and terminated due to non-retaliatory business related reasons.
II. NON-ADMISSION OF LIABILITY
This consent decree is not an adjudication or finding on the merits of this case and shall not be construed as an admission of a violation of Title VII by Defendant.
The Court has reviewed the terms of this Consent Decree in light of the pleadings, the record herein, and the applicable law, and now approves the Consent Decree in its entirety.
Therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
III. GENERAL PROVISIONS
IV. GENERAL INJUNCTIVE RELIEF
1. This Court has jurisdiction over the subject matter and the parties to this action.
2. This Consent Decree constitutes a full resolution of the EEOC's complaint in Civil Action No. C 02-4717 CRB.
3. This Consent Decree shall become effective upon its entry by the Court.
4. This Consent Decree is final and binding upon the Parties, their successors and assigns.
5. The EEOC and Defendant shall bear their own costs and attorney fees.1. Retaliation
Defendant, its officers, agents, management (including supervisory employees), successors or assigns, and all those in active concert or participation with them, agree not to engage in, implement or permit any action, policy or practice with the purpose of retaliating against any current or former employee of Defendant because he or she opposed any practice of discrimination, filed a charge of discrimination alleging any such practice; 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 case, and/or relating to any claim of discrimination or harassment, or, was identified as a possible witness in this action.
V. SPECIFIC INJUNCTIVE RELIEF
In order to effectuate the objectives embodied in this Consent Decree, Defendant shall make the following modifications to its existing policies, procedures and practices.
1. Policy Changes
Within sixty (60) days after entry of this Consent Decree, Defendant will revise its "Employment Manual" policies as follows:
(i) The manual will include a policy of prohibition against retaliation, and will include a definition of retaliation and strong non-retaliation language with examples or prohibited conduct.
(ii) Defendant shall develop written procedure for the reporting and investigation of claims of discrimination, harassment or retaliation. At a minimum, the procedure shall:
a. specify how an employee may make a complaint internally to Defendant under the procedure;
b. will include a provision that specifically notifies employees that they are not required to use the internal complaint procedure, and may make complaints of discrimination, harassment or retaliation directly to the EEOC;
c. provide that complaints of discrimination or harassment and/or retaliation will be accepted by Defendant both in writing and orally;
(b) require that Defendant provide a timetable for commencing an investigation after a complaint is made or received, and for remedial action to be taken upon conclusion of an investigation; and,
(c) require that Defendant promptly, upon the conclusion of the investigation of a complaint, communicate to the complaining employee the results of the investigation, including what remedial actions have been taken, or are planned proposed.
(ii) As part of the policy, Defendant shall provide its employees with convenient, confidential and reliable mechanisms for reporting incidents of discrimination, harassment, and retaliation. Defendant shall designate at least three individuals as contact persons with responsibility for turning complaints over to those employees or third parties designated as complaint investigators. The names of the contact persons and telephone numbers shall be listed on the policy, and also shall be routinely and continuously posted.
2. Policy Dissemination:
Beginning within 90 days of the entry of this decree, the "Employee Manual," as revised above, will be hand-delivered to each and every employee of Defendant; and the new anti-retaliation policy and complaint procedure will be posted in the employee "locker room" and on the work schedule bulletin board for the duration of the decree.
3. Supervisor Accountability Policy:
(i) Defendant agrees that it shall impose substantial discipline — up to and including termination, suspension without pay or demotion — upon any supervisor or other manager, who retaliates against any person who complains or participates in any investigation or proceeding concerning any such discrimination or harassment;
(ii) Supervisors and managers also shall be accountable for promptly and appropriately responding to complaints of discrimination or harassment, and to document all such complaints;
(iii) Defendant agrees that it will advise all current and new managers and supervisors of their duties under these revised policies.
4. Training Programs
(i) Training of Employees and Agents
a. Within ninety (90) days of the Effective Date of the Decree, Defendant shall select a non-discrimination training program for the instruction of all currently employed personnel. Thereafter, it shall be presented live to all employees within sixty (60) days, and thereafter on a annual basis for the duration of the Decree. Defendant shall notify the EEOC of the dates, times and locations at least ten (10) business days prior to each of the training sessions, and the EEOC shall have the right to attend or participate in any or all such trainings.
b. At a minimum, the non-discrimination training programs shall include the following:
1. instruction on the requirements of all applicable equal employment opportunity ("EEO") laws including, but not limited to Title VII of the Civil Rights Act of 1964, as amended;
2. a review of Defendant's non-discrimination employment policies and of the specific requirements of this Consent Decree, including prohibitions on retaliation and a description of Defendant's complaint and investigation procedures; and,
3. training of management in dealing with discrimination and harassment complaints.
(ii) New Employee Training — Each newly hired officer, employee or agent shall also receive training of the type described above, with the exception that the initial training may be presented via videotape at the election of Defendant. The new employee training shall be provided within thirty (30) days of the new officer, employee or agents commencement date.
(iii) Other Training — For the duration of this Decree, Defendant shall also include instruction regarding their duties and obligations under Title II of the 1964 Civil Rights Act, the Fair Employment and Housing Act and this Consent Decree, in all written training materials and formal training sessions provided in the ordinary course of business to its officers, employees or agents. Such instruction shall include a statement that Defendant cannot and will not reprimand, penalize, or otherwise retaliate against any officer, employee or agent for opposing or reporting alleged employment discrimination, in violation of applicable law and/or this Decree.
5. Posting and Other Notice to Employees
1. Notice to Employees and Posting of Decree Notice
a. Within sixty (60) days of the Effective Date of this Decree, Defendant shall conduct orientation meetings advising all employees, including supervisors, managers, and human resources staff, of the terms and conditions of the Decree. Defendant shall notify the EEOC of the dates, times and locations at least ten (10) business days prior to each of the orientation meetings, and the EEOC shall have the right to attend or participate in any or all of such meetings. In addition, Defendant shall inform their employees that any breach of, or failure to comply with, the terms and conditions set forth in this Decree may subject them to dismissal or other appropriate disciplinary action.
b. The Defendant shall inform each current officer, employee and agent that Defendant cannot and will not reprimand, penalize, or otherwise retaliate in any way against any officer, employee or agent for opposing or reporting alleged employment discrimination, in violation of applicable law and/or this Decree.
c. The Defendant shall notify all employees that failure to comply with the obligations of this Decree shall affect the eligibility of any management employee to receive any benefits under any of Defendant's incentive programs for management employees. The Defendant shall notify all employees that failure to comply with the obligations of this Decree shall affect the eligibility of any employee to receive a promotion.
VI. MONETARY RELIEF
1. Defendant will pay to Shannon Craine the amount of Thirty-Two Thousand Five Hundred Dollars. [$32,500.00].
2. The amount above is being paid in complete compromise of all disputed issues arising out of the Complaint filed in this lawsuit, Civil Action No. C 02-4717 CRB.
3. The monetary relief shall be paid as follows:
a. Within ten days of the entry of this Consent Decree, Defendant shall make payment in the amount of Five Thousand Dollars [$5,000.00], in the form of a business check, cashier's check, or certified check made payable to Shannon Craine and will send said payment to Linda Ordonio-Dixon, Senior Trial Attorney, EEOC, 901 Market, Suite 500, San Francisco, CA 94103. Ms. Ordonio-Dixon will hand-deliver payment to Ms. Craine.
b. The balance of Twenty-Seven Thousand Five Hundred Dollars [$27,500.00] shall be paid in monthly installments of One Thousand One Hundred Forty-Five Dollars and Eighty-Three Cents [$1,145.83] beginning no later than May 15,2003, and thereafter no later than the 15th day of every month for the following twenty-three [23] months. These monthly installments shall be made in the form of a business check, cashier's check, or certified check made payable to Shannon Craine and shall be mailed to Ms. Craine's current address no later than the 15th day of the month due. Ms. Craine shall advise Defendant of any address changes by certified mail.
VII. Disclosure of Information regarding Ms. Crane's Employment
Defendant shall not disclose, or otherwise make public, any information regarding Shannon Craine's employment with Defendant except as follows:
(i) In response to a specific inquiry, Defendant may disclose Ms. Craine's dates of employ, position held and final rate of pay;
(ii) Defendant may report any information as required to state or federal authorities; and,
(iii) Defendant may disclose information under Court order.
Defendant shall advise employees, managers and any officials or agents of Defendant of the foregoing in conjunction with the training to be conducted pursuant to this Consent Decree.
VIII. REPORTING
1. Document Preservation
For the duration of the Decree, Defendant agrees to maintain such records as are necessary to demonstrate their compliance with this Decree, including but not limited to the documents specifically identified below, and to verify that the reports submitted are accurate.
For the Duration of the Decree, Defendant shall retain the following hard-copy (paper or fiche) and computer records for the facilities and employees:
1. All documents evidencing training, notification or policy changes as required by this Decree.
2. Documentation of all complaints of discrimination or harassment including, but not limited to Defendant's investigation of each complaint.
2. Initial Reporting:
Within ninety (90) days of the Effective Date of this Decree, Defendant shall provide the EEOC with the following:
a. Defendant's new anti-retaliation policy;
b. Defendant's new complaint and investigation procedure;
c. verification that all of Defendant's employees have attended an orientation meeting on the terms and conditions of this Decree; and
d. proposed non-discrimination training programs and the identities of the persons and/or organizations proposed to conduct the trainings.
2. Subsequent Reports: Reporting Intervals And Content
On an annual basis, Defendant shall provide the EEOC with a report in both computerized format, if available, and hard copy. The closing period for each report shall be the yearly anniversary of the Effective Date of this Decree. No later than sixty (60) days after this date, Defendant shall submit a report containing the following information for the preceding year:
i. All complaints of discrimination, harassment or retaliation.
ii. Verification of employee attendance for all anti-discrimination trainings which took place since the close of the previous reporting period.
IX. RETENTION OF JURISDICTION AND EXPIRATION OF CONSENT DECREE
1. The duration of this Consent Decree shall be three (3) years from the date of entry of the Decree, 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 finding or orders during the term of the Consent Decree that the Defendant has failed to comply with any terms of this Consent Decree.
2. The EEOC shall be entitled to its reasonable costs and attorneys' fees in connection with any civil action to enforce compliance with the terms and conditions of this Consent Decree.
3. This Court shall retain jurisdiction over this matter and the Parties for the purpose of enforcing compliance with the Consent Decree, including issuing such orders as may be required to effectuate its purposes.
4. Any documents or information required to be submitted by Defendant to the EEOC under the terms of this Consent Decree shall be addressed to Linda Ordonio-Dixon Senior Trial Attorney, EEOC, 901 Market Street. Suite 500, San Francisco, California 94103.