Opinion
CIV F 02-6199 AWI LJO.
September 30, 2005
ORDER ON PLAINTIFF'S MOTION TO AMEND JUDGMENT TO INCLUDE EQUITABLE RELIEF AND FINDINGS OF FACT AND CONCLUSIONS OF LAW
After a 23 day jury trial that began in December 2004 and ended in January 2005, a jury awarded Plaintiff-Intervenor Olivia Tamayo ("Tamayo" or "Ms. Tamayo") approximately $1 million. Plaintiffs now seek a permanent injunction that has roughly 10 facets. Plaintiffs have also submitted 94 proposed findings of fact and 8 conclusions of law, which are intended to be the basis for the injunctive relief requested. The 10 facets of injunctive relief requested against Defendant are: (1) General injunction against Defendant prohibiting sex discrimination and retaliation; (2) Hire an independent consultant ("IC") with Title VII experience to enforce Defendant's harassment policy; (3) Revision of the sex harassment policy through the IC w/in 45 days of injunction; (4) Creation of complaint procedure w/in 45 days through the IC that encourages employees to report harassment; (5) Force Defendant to impose "substantial discipline" on any supervisor or manager who engaged in or permitted "harassment"; (6) Harassment/Retaliation training for employees w/in 90 days, 4 hours for employees and 8 hours for supervisor; (7) Use an independent, certified translator for complaints and training; (8) For five years and twice every year, send reports and documentation to the EEOC; (9) Post the terms of the injunction; and (10) Duration of the injunction shall be 5 years and all costs shall be borne by Defendant.
Defendant has filed a general objection against the proposed findings of fact in which it argues that findings and conclusions are inappropriate as a jury has already made all necessary findings. The Court does not find Defendant's objection persuasive because a jury may decide some issues while the court may decide others, and 42 U.S.C. § 2000e-5(g)(1) is premised on a finding of intentional conduct by the Court. See 42 U.S.C. § 2000e-5(g)(1); Rutherford v. Harris County, 197 F.3d 173, 177-79 (5th Cir. 1999); Gotthardt v. National Railroad Passenger Corp., 191 F.3d 1148, 1152-53 (9th Cir. 1999); EEOC v. E.I Du Pont de Numours Co., 2005 U.S. Dist. LEXIS 46 (E .D. La. January 4, 2005); Sherman v. Kasotakis, 314 F.Sup p. 2d 843, 848, 880 (N.D. Iowa 2004); Reiter v. Metropolitan Trans. Auth. of New York, 2003 U.S. Dist. LEXIS 17391 (S.D.N.Y. September 30, 2003).
After denials of Defendant's post trial motions, the Court requested additional information from Defendant in order to resolve Plaintiff's motion for injunctive relief. Specifically the Court requested that Defendant explain its current policies and procedures, who administers the policies, and that person's qualifications. Defendant has now submitted the additional requested information.
The Court will grant in part Plaintiffs' motion as described below.
INJUNCTION STANDARDS
As part of the remedies available to a successful Title VII plaintiff, the court may impose an injunction against the employer/defendant. In relevant part, 42 U.S.C. § 2000e-5(g)(1) reads:
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.42 U.S.C. § 2000e-5(g)(1).
The decision to award or deny injunctive relief is reviewed for an abuse of discretion and the application of correct legal principles. EEOC v. Hacienda Hotel, 881 F.2d 1504, 1518 (9th Cir. 1989). Although referencing racial discrimination, the Supreme Court has admonished that district courts have "not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Albermarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). Thus, once intentional discriminatory or unlawful employment conduct is found, "district courts have broad equitable powers to fashion relief for violations of Title VII that will eliminate the effects of past discrimination." Bouman v. Block, 940 F.2d 1211, 1233 (9th Cir. 1991); see also Ilona of Hungary, 108 F.3d at 1578. However, the court's discretion in fashioning injunctive is not unlimited and provisions of an injunction may be improper "if they are broader than necessary to remedy the underlying wrong." EEOC v. HBE Corp., 135 F.3d 543, 557 (8th Cir. 1998) (citing Easley v. Anheuser-Busch, Inc., 758 F.2d 251, 263 (8th Cir. 1985)). Because the EEOC acts to vindicate the public interest and to protect similarly situated employees from retaliation and unlawful discrimination, the EEOC need only identify one or a mere handful of aggrieved employees in order to obtain injunctive relief. See EEOC v. Frank's Nursery Crafts, Inc., 177 F.3d 448, 467-468 (6th Cir. 1999); see also Hacienda Hotel, 881 F.2d at 1519. "The EEOC may obtain a permanent injunction even where it does not allege a pattern or policy of discrimination." Frank's Nursery, 177 F.3d at 468.
"Permanent injunctive relief is warranted where . . . defendant's past and present misconduct indicates a strong likelihood of future violations." Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 564 (9th Cir. 1990). "In seeking a permanent injunction, the moving party must convince the court that relief is needed: `The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.'" Cummings v. Connell, 316 F.3d 886, 898 (9th Cir. 2003) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)); see also HBE Corp., 135 F.3d at 558 (holding specific injunction provision was unnecessary as it only addressed "speculative future harm"). A determination that danger of reoccurrence exists must "be based on appropriate findings supported by the record." United States v. Laerdal Mfg. Corp., 73 F.3d 852, 854-855 (9th Cir. 1995);Federal Election Comm'n v. Furgatch, 869 F.2d 1256, 1263 (9th Cir. 1989); see also Fed.R.Civ.P. 65(d). Evidence relied on to show a cognizable danger of recurrent violation should not be "stale" or too far removed from the present. See Webb v. Missouri Pacific Railroad Co., 98 F.3d 1067, 1068-69 (8th Cir. 1996) (and cases cited therein) (holding that past conduct cannot support an injunction issued five years after the close of evidence). In making this finding, the court may consider "the degree of scienter involved; the isolated or recurrent nature of the infraction; the defendant's recognition of the wrongful nature of his conduct; the extent to which the defendant's professional and personal characteristics might enable or tempt him to commit future violations; and the sincerity of any assurances against future violations." Laerdal Mfg. Corp., 73 F.3d at 854-855; Furgatch, 869 F.2d at 1263 n. 5.
A defendant may resist an injunction by showing that "there is no reasonable expectation that the wrong will be repeated;" in other words, the issue or claim is moot. W.T. Grant, 345 U.S. at 633; see also Hacienda Hotel, 881 F.2d at 1518-19; EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987). However, the burden of showing no reasonable expectation of repeating the wrong is heavy. See W.T. Grant, 345 U.S. at 633. Generally, victims of employment discrimination are entitled to an injunction against future discrimination unless the employer proves it is unlikely to repeat the practice. See Hacienda Hotel, 881 F.2d at 1819; Goodyear Aerospace, 813 F.2d at 1544. Moreover, an "employer that takes curative actions only after it has been sued fails to provide sufficient assurances that it will not repeat the violation to justify denying an injunction." Hacienda Hotel, 881 F.2d at 1519;Goodyear Aerospace, 813 F.2d at 1544. Where individuals who are found to have discriminated remain as a defendant's primary decision maker, injunctive relief may be justified. Ilona of Hungary, 108 F.3d at 1579.
If a court issues an injunction, the court must inter alia set forth the reasons for issuance. Federal Rule of Civil Procedure 65(d) reads:
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
TRIAL
The EEOC brought suit in this Court on September 30, 2002, and Olivia Tamayo filed her complaint in intervention on January 1, 2004. Trial began on November 29, 2004, and ended on January 21, 2005, with a jury verdict. The matters presented to the jury for resolution were Plaintiff's claims as to liability and economic damages, non-economic damages, and punitive damages. The jury found in favor of Plaintiffs on both Title VII and California Fair Employment and Housing Act claims. Specifically, the jury found:
a. hostile environment sexual harassment by her supervisor, Rene Rodriguez;
b. hostile environment sexual harassment by co-workers through sexual rumors/gossip in late 2000/early 2001;
c. retaliation against Tamayo for complaining of co-worker sexual harassment; and
d. constructive discharge.
The jury awarded Tamayo $350,00 in compensatory damages, $53,000 in front pay, and $91,000 in back pay. The jury further found that Defendant acted with malice or in reckless disregard of Tamayo's federally protected rights and awarded $500,000, which was later reduced to $300,000, in punitive damages.
This Court now enters the following findings of fact and conclusions of law regarding injunctive relief in accordance with 42 U.S.C. § 2000e-5(g)(1) and Rule 65(d). To the extent that any findings of fact are included under conclusions of law, they shall be deemed findings of fact. To the extent that any conclusions of law are included under findings of fact, they shall be deemed conclusions of law.
FINDINGS OF FACT
Plaintiffs have proposed many findings of facts. However, Plaintiffs do not provide an adequate basis for the court to adopt each of the proposed findings or conclude that the proposed findings are accurate since there are no citations to the record or to transcripts, to other evidence, or to declarations for support. To the extent that a proposed finding is not utilized, the Court finds that either insufficient support has been presented/cited or that the proposed finding is unnecessary to the resolution of this motion.
1. The Court adopts the jury's verdict as its findings with respect to Defendant's liability under Title VII. Further, in February and March 2001, Defendant took adverse employment actions against Tamayo by refusing to reassign her to a position where she would not be required to work alone, by refusing to supply her with a radio, by suspending her for one day, and for issuing her a final written warning. These adverse actions were in retaliation for Tamayo's complaints of co-worker harassment in 2001. Although Defendant argued that Tamayo had participated in inappropriate sexual gossip and comments, the real reason was retaliation.
2. Tamayo was subjected to a hostile work environment created by sexual assault (which occurred between 1993 and 1994), physical assault, repeated unwelcome comments and sexual advances, and threats of bodily injury by her supervisor, Rene Rodriguez ("Rodriguez").
3. Tamayo first complained about Rodriguez to the Harris Farms front office on July 26, 1999. Tamayo complained that Rodriguez grabbed her in a violent manner while she was working in a field because she had been talking to another man. Tamayo did not complain that Rodriguez had raped her.
Plaintiffs propose findings of fact that Tamayo had complained in late 1998 to her then supervisor, Audelio Corona, that Rodriguez would bother her every time Rodriguez came around her. However, Tamayo's complaint to Corona was ambiguous at best. Tamayo complained to Corona about Rodriguez's placement of portable toilets for the agriculture crew and that Rodriguez would bother her by asking about where her crew would be moving. Tamayo's complaint to Corona did not indicate sexual harassment.
4. Since Defendant did not have a full-time Human Resources Director in 1999, Harris Farms used a contractor/consultant to investigate human resources issues, such as sexual harassment. Shirley Ollech ("Ollech") was the individual who investigated Tamayo's July 1999 complaint.
5. Ollech interviewed Tamayo, two female witnesses, and Rodriguez, who claimed that he and Tamayo had been having a consensual relationship. Ollech concluded that Tamayo was credible and that Rodriguez had admitted a romantic relationship with Tamayo. Ollech also noted that Rodriguez had been given a final written warning and a three day suspension in 1996 for sexual harassment regarding Maria Martinez ("Martinez").
6. Defendant also contacted Sheriff's Deputy Dana Crittenden ("Crittenden") to investigate the matter. Crittenden does not speak Spanish and Sylvia Gomez ("Gomez") translated for Crittenden as Crittenden interviewed both Tamayo and Rodriguez. Tamayo did not disclose the rapes to Crittenden, and Gomez passed a note to Crittenden indicating that Tamayo and Rodriguez may have been having an affair.
7. Defendant also aided Tamayo in obtaining a temporary restraining order, but Tamayo eventually had to obtain/pay for her own counsel.
8. Ollech recommended that Rodriguez be transferred to a position in the irrigation department (where he would not have access to a truck), be ordered to stay away from Tamayo, and receive individual sexual harassment training.
9. Ollech's recommendation was approved by then Farm Manager, Larry Chrisco ("Chrisco"), and then vice-president, Erick Johnson ("Johnson"). Johnson is no longer employed by Harris Farms.
10. On August 4, 1999, Ollech advised Tamayo that it had not been determined whether Tamayo's allegations were true, but that management had taken steps to keep her and Rodriguez separated. Ollech, however, did not inform Tamayo's supervisors that Tamayo and Rodriguez were to be separated.
11. On August 16, 1999, Tamayo reported that she saw Rodriguez's truck driving slowly, up and down the road that was adjacent to the field where Tamayo was working.12. On August 18, 1999, Tamayo met with Ollech and Gomez. At this meeting, Tamayo reported three rapes by Rodriguez that had occurred in 1993 and 1994. Tamayo also told Ollech that Rodriguez had claimed to have fought Matias Barrera for Barrera's wife and that Rodriguez's nephew, Rafael Reyna, knew about the incident but arranged for Rodriguez to continue working. Tamayo also identified three witnesses.
13. The August 18, 1999, meeting was memorialized in both English and Spanish. At trial, however, the court interpreter translated the August 18, 1999 Spanish language memo and the translation was nonsensical. On the memo, Gomez is listed as being present as the translator, but does not expressly state that Gomez created the Spanish language memo. See Bates No. 957-63.
14. No other interview occurred until September 29, 1999, when Ollech again interviewed Rodriguez. On September 24, 1999, Tamayo filed a complaint with the EEOC.
15. Ollech interviewed two of the three witnesses identified by Tamayo in October 1999. However, no final report was made regarding Tamayo's August 16 or August 18 complaints, and Tamayo was never informed of the results of the investigations.
16. Rodriguez retired on December 10, 1999, and is no longer employed by Harris Farms.
17. Tamayo was also subjected to a hostile work environment by co-workers between late 2000 and early 2001. Tamayo's co-workers engaged in sexual harassment through regularly engaging in sexual gossip about Tamayo. The gossip evolved to include threats of violence around January 2001.
18. Between January 27 and January 29, 2001, Tamayo complained to her supervisor about the rumors and sexual gossip about her being passed in the Almond Department, where Tamayo was working. Tamayo's supervisor informed Gomez that sexual comments were going around the Almond Department and that Human Resources needed to investigate.
19. In 2000, Gomez was appointed the full time Human Resources Director at Harris Farms. Gomez was originally hired by Harris Farms as a Human Resources Assistant in May 1999. One of her primary duties when hired in 1999 was to translate Spanish to English and vice versa. Gomez has taken some college level courses, but does not have a college degree and is not a certified interpreter/translator. While Ollech was the human resources consultant, Gomez was not a decision maker and did not have authority to discipline employees, but would take a complaint and schedule a meeting if Ollech was not available. Prior to working at Harris Farms, Gomez had conducted one harassment investigation that was unrelated to discrimination.
20. On February 2, 2001, without having heard from the front office, Tamayo went to the office in order to talk to Chrisco. Tamayo complained of the sexual gossip and threats directed towards her. Tamayo revealed that she had been working alone and was frightened. Gomez acknowledged knowing about the problems.
The gossip and rumors involved Tamayo's sexual habits and a threat that Rene Rodriguez was going to pay people money to drug Tamayo and then take naked pictures of Tamayo so as to break up Tamayo's marriage.
21. On February 3, 2001, Gomez began investigating. Gomez drove out to the Almond Department, accompanied by the department manager, and conducted interviews in the field, where other workers could possibly observe the interviews. Gomez had not yet interviewed Tamayo and the department manager knew of no reason why interviews of Almond Department employees could not have been conducted in the office. Gomez did not interview each of the potential witnesses in the Almond Department.
22. Also on February 3, 2001, Gomez informed Tamayo that Gomez had spoken with Chrisco and that Tamayo's request not to work alone was denied.
23. Sometime after February 3, 2001, Tamayo requested that she and two witnesses (Gustavo and Lourdes Ramirez) meet with Chrisco.
24. Between February 3 and 21, the work vehicles of Gustavo and Lourdes Ramirez were vandalized. The hydraulic brake line of Lourdes's vehicle was severed and the rear tires of Gustavo's truck were punctured.
25. Chrisco did not meet with Tamayo and the Ramirezes until February 21, 2001. Although Chrisco knew about the nature of the rumors and gossip, he did not meet with Tamayo sooner because he wanted Human Resources to be present and Gomez was unavailable for personal reasons. No other person filled in for Gomez while she was unavailable with regard to Tamayo's harassment complaint.
26. At the February 21, 2001, meeting, the nature of the gossip and threats against Tamayo were explained and the Ramirezes told about the vandalism and that co-workers had threatened retaliation.
27. After the meeting, Chrisco recommended suspending everyone involved in the complaint for two weeks irrespective of culpability.
28. Gomez concluded that there was a lot of "he said/she said," and that there were two groups involved: one group was Tamayo and the Ramirezes, the second group was made of employees Mosqueda, Mendoza, and Hernandez. Gomez also concluded that everyone in both groups engaged in inappropriate behavior and should be disciplined.
29. Mosqueda, Mendoza and Lourdes Ramirez were all terminated as they had prior final written warnings.
30. Hernandez and Gustavo Ramirez were given final written warnings and Hernandez was suspended.
31. On March 12, 2001, Gomez informed Tamayo that, as a result of the investigation, Tamayo was suspended for one day and given a final written warning. The final written warning indicated that it was for harassment.
32. Gomez refused to answer Tamayo's question about what would happen to the other employees involved in the complaint.
33. At trial, Gomez testified that Tamayo had been disciplined for participating in sexual gossip. However, no documentation was introduced that supported this conclusion. Additionally, Gomez indicated that some of her documentation was intended for her personal use only and was not intended to be read by others.
34. Approximately six weeks elapsed from the time of Tamayo's complaint in late January to resolution on March 12, 2001. Part of the reason for delay was that Gomez was unavailable because of other duties and personal reasons.
35. Hermalinda Reyes ("Reyes"), who is currently employed in a supervisory position at Harris Farms, testified that she had heard gossip about concerning Tamayo. However, Reyes testified that she believed that she did not have an obligation to report harassment in the workplace and that it is the responsibility of the "harassee" to complain.
36. The operative anti-harassment policy for both Tamayo's 1999 and 2001 complaints was adopted in 1989, and had not been updated. The 1989 policy was printed in both English and Spanish in the Employee Handbook.
37. Among other things, the 1989 harassment policy did not describe prohibited conduct, contain any confidentiality guarantee, contain an anti-retaliation provision, state that employees who violate the policy would be disciplined, and required that reports be made to the "executive director or the manager" even though it is unclear who those persons are.
38. The Human Resources consultants used by Harris Farms between 1996 an 1999 were supposed to have updated that 1989 harassment, but failed to do so. Both the President, John Harris, and the then Vice-President, Erick Johnson, knew that the 1989 policy should be updated.
39. Tamayo participated in sexual harassment training seminars twice in 1996. Although the programs were translated into Spanish, Tamayo recalled that there were times that she did not understand all of the words that were used.
40. Both Ollech and Kelle Butler (the human resources consultant from 1996 to 1999) acknowledged that the education level of many Harris Farms employees was low.
41. Other than Tamayo not understanding some of the words used during the 1996 harassment training, no further specific examples or specific evidence of Harris Farms employees not understanding or comprehending training, policies and procedures, or harassment related documents has been presented or identified to the Court.
42. Also in December 1996, Martinez complained that Rodriguez had telephoned her house expressing a romantic interest in her and had parked outside her house. Kelle Butler investigated the complaint. Martinez was hesitant to complain, however, because she was concerned about retaliation. It was determined that Rodriguez had inappropriately called Martinez at home. On January 22, 1997, Rodriguez was required to have additional harassment training, was suspended without pay for 3 days, and informed that similar conduct or retaliation would result in further discipline, up to and including termination. See Bates No. 0066. There is no indication that Martinez was subsequently retaliated against.
43. In April 2001, Defendant conducted a sexual harassment seminar for its managers/supervisors. The program was presented by Richard Alaniz and discussed employer liability, what harassment was, and stopping sexual gossip. See Bates Nos. 1131-44.
44 With the assistance of experienced and board certified labor and employment law counsel, in 2003, Defendant revised its sexual harassment policy. See Alaniz Declaration at ¶¶ 3-6, 14.
45. In 2004, Defendant created a New Employee Orientation packet. The orientation packet is distributed to all new employees. The orientation packet includes documents entitled: "Policy Against Harassment," "Harris Farms Sexual Harassment Policy," "Procedures for Reporting Harassment or Discrimination," and "Harris Farms Open Door Policy." See Gomez Declaration at ¶ 15(a); Exhibit P.
Unless otherwise noted, all references to "Exhibit" refer to exhibits attached to the September 12, 2005 declaration of Sylvia Gomez.
46. Also included in the orientation packet is a pamphlet from the California Department of Fair Employment and Housing ("DFEH"). The pamphlet discusses violence and sexual harassment, gives examples of harassment, explains an employer's obligations and possible liability, and provides information for contacting the DFEH.See Exhibit P.
47. The "Harris Farms Sexual Harassment Policy" in the orientation packet reads:
Harris Farms, Inc., is committed to providing a work environment free of unlawful harassment. Company policy prohibits harassment because of sex (which includes sexual harassment, gender harassment and harassment due to pregnancy, childbirth or related medical conditions) and harassment because of race, religious creed, color national origin or ancestry, physical or mental disability, medical condition, marital status, age, sexual orientation or any other basis protected by federal, state, or local law, ordinance or regulation. ALL SUCH HARASSMENT IS UNLAWFUL.
The Company's anti-harassment policy applies to all persons involved in the operation of Harris Farms, Inc., and prohibits unlawful harassment by any employee of the Company.
Prohibited unlawful harassment because of sex (sexual harassment, gender harassment and harassment due to pregnancy, childbirth or related medical conditions), race, religious creed, color, national origin or ancestry, physical or mental disability, medical condition, martial status, age, sexual orientation, or any other protected basis includes, but is not limited to the following behavior:
a. Verbal conduct such as epithets, derogatory jokes or comments, slurs or unwanted sexual advances, invitations or comments; (Examples: name calling belittling, sexually explicit or degrading words to describe an individual, sexually explicit jokes, comments about an employee's anatomy and/or dress, sexually oriented noises or remarks, questions about a person's sexual practices, verbal abuse, graphic verbal commentaries about the body.) and
b. Visual conduct such as derogatory and/or sexually-oriented posters, photography, cartoons, drawings or gestures; (Examples: displaying sexual pictures, writings or objects, obscene letters or invitations, staring at an employee's anatomy, leering, sexually oriented gestures, mooing, unwanted love letters or notes.) and
c. Physical conducts such as assault, unwanted touching, blocking normal movement or interfering with work because of sex, race or any other protected basis; (Examples: touching, pinching, patting, grabbing, rubbing against or poking another employee's body, hazing or initiation that involves a sexual component, requiring an employee to wear sexually suggestive clothing.) and
d. Threats and demands to submit to sexual requests as a condition to continued employment, or to avoid some other loss, and offers employment benefits in return for sexual favors; (Examples: continued requests for dates, any threat of demotion, termination etc., if requested favors are not given making king or threatening reprisals after a negative response to sexual advances, propositioning an employee.) and
e. Retaliation for having reported or threatened to report harassment. Prohibited retaliation includes but is not limited to: demotion, suspension, failure to hire or consider for hire, failure to give equal consideration in making employment decisions, failure to make impartial employment recommendations, adversely affecting working conditions or otherwise denying any employment benefit to an individual.
If any employee believes that he or she is the victim of any type of harassment, including sexual harassment, that employee should immediately report the incident to their Supervisor. If an employee is uncomfortable in reporting the incident to their Supervisor, the incident should be reported to the Human Resource Department. The Company will promptly and clearly inform the employee of his or her rights to assistance and how to protect and preserve those rights.
Harris Farms, Incl, will fully and effectively investigate any such report and will take whatever corrective action is deemed necessary, including disciplining or discharging any individual who is believed to have violated this prohibition against harassment. The complaining employee will be informed of the action taken. The Company will also take action to protect the complaining employee and to prevent further harassment for retaliation. Finally, the complainant will be made whole to the extent possible, for his or her losses.
The Company clearly does not tolerate harassment on the basis of any of the categories discussed in this policy and will take appropriate disciplinary action whenever such harassment is demonstrated. Any individuals engaging in such conduct contrary to Company policy may be personally liable in any legal action brought against them.
The Company encourages all employees to report any incidents of harassment forbidden by this policy so that complaints can be quickly and fairly resolved. It is important that employees utilize this internal procedure.
Exhibit P (emphasis in original).
48. The "Procedures for Reporting Harassment" in the orientation packet reads:
Any form of harassment or discrimination in our workplace is contrary to Harris Farms, Inc. personnel policies. We will take prudent and continual action to prevent any harassment or discrimination from occurring in our workplace. However, if you believe that you have been unlawfully harassed or discriminated, we urge you to report the incident immediately so that your complaint can be resolved quickly and fairly. We recommend that you take the following steps in such a case:
1. When possible, confront the harasser and request him/her to stop.
2. Inform your supervisor, or any other Company supervisor, manager or representative of the Company, as soon as possible. To the extent possible, include all details on the incident(s), names of individuals involved, and the names of any witnesses.
3. Supervisors will refer any harassment or discrimination complaints to the Human Resources Department. The Company will immediately undertake a thorough and objective investigation of the harassment allegations.
4. If the Company determines that any unlawful harassment has occurred, it will take effective remedial action as warranted by the circumstances. Any employee the Company determines to be responsible for unlawful harassment will be subject to appropriate disciplinary action, up to and including termination.
5. The Company will take appropriate action to remedy any loss to you resulting from harassment.
6. The Company will not retaliate against you for filing a complaint and will not tolerate or permit retaliation by any Company management, employee, or co-workers.
7. As an alternative to the above notification procedures, we have established the Harris Farms Employee Assistance Hot Line. . . . You can leave a confidential message on this special telephone line with any appropriate information 24 hours per day, 365 days per year. Upon receipt of information into our Hot Line we will immediately follow-up with you and proceed with any appropriate investigations and actions as the situation may warrant.
8. Additionally, you may contact Sylvia Gomez, Human Resources Manger at any time with any question or concerns on these or other issues. Her telephone number is . . . ext . . .; her pager number is. . . .
Exhibit P.
49. The "Open Door Policy" in the orientation packet reads:
Harris Farms, Inc., has an open door policy and encourages all employees to contact their immediate supervisor or the Human Resources Department with any concerns, conflicts, or issues they have regarding their work environment, assignments or treatment. Alternatively, employees should also feel free to contact the Farm Manager, the Farms Controller, or the Company President with such issues if they so prefer.
The Company recognizes that form time to time there will be conflicts and employees will disagree with a management decision. We believe that open communications are the best way to resolve differences and to promote a positive work environment and working relationship. Issues brought forward will be dealt with in an objective, fair and professional manner. No employee will be retaliated against for utilizing this policy.
Numbers of contacts:
Harris Farms, Inc. . . . Steve Ozuna — Farm Manager . . . Sylvia Gomez — Human Resources office . . .
Exhibit P.
50. The "Policy Against Harassment" in the orientation packet reads:
Harris Farms, Inc. Is committed to providing a workplace free of sexual harassment as well as harassment based on such factors as race, color religion, national origin, ancestry, age, medical condition, marital status, disability or veteran status. Harris Farms, Inc. Strongly disapproves of and will not tolerate the harassment of employees by managers, supervisors or co-workers. Harris Farms, Inc. Will also attempt to protect employees from harassment by non-employees in the workplace.
Harassment includes verbal, physical, and visual conduct that creates an intimidating, offensive or hostile working environment or that interferes with work performance. Some examples include racial slurs, ethnic jokes, posting of offensive statements, posters or cartoons or other similar conduct. Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to conduct is made either explicitly or implicitly a term or condition of an individual employment; (2) submission to or rejection of such conduct of an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
Any incident of harassment including work-related harassment by any company personnel or any other agent of the company should be reported promptly to the employee's supervisor or to the Human Resources Department. Managers who receive complaints or who observe harassing conduct must inform the Human Resources Department or the Farm Manager immediately. Harris Farms, Inc. Emphasizes that an employee is not required to complain to his/her supervisor if that supervisor is the individual who is harassing the employee.
Every complaint of harassment that is reported to company management will be investigated thoroughly, promptly and in a confidential manner. In addition, Harris Farms, Inc. Will not tolerate retaliation against any employee for making a complaint, or for participating in an investigation of harassment.
If harassment is established, Harris Farms, Inc. will discipline the offender. Disciplinary action for the violation fo this policy can range from verbal or written warning up to and including immediate, depending upon the circumstances (With regard to acts of harassment by customers or vendors, corrective action will be taken after consultation with the appropriate management personnel). Employees who knowingly make false claims of harassment will be faced with disciplinary action and possible termination.
REMEMBER . . . . . The SAFE WAY is always the BEST WAY to work!
Exhibit P (emphasis in original).
51. The "Policy Against Harassment," "Harris Farms Sexual Harassment Policy," "Policy for Reporting Harassment or Discrimination," and "Open Door Policy" found in the orientation packet are provided in both English and Spanish. See Exhibit P.
52. The "Open Door Policy" is also found in the 2003 and 2005 Employee Handbook.
53. The "Harris Farms Sexual Harassment Policy," is found in the 2003 and 2005 Employee Handbook, but is entitled "Policy Against Harassment and Discrimination." The sexual harassment policy in the 2005 handbook contains two additional sentences, compared to the 2003 Employee Handbook and the 2004 orientation packet:
a. "The Company will attempt to keep the investigation as confidential as an effective investigation allows."
b. "The Company cannot do anything to stop offensive conduct if you do not report it."Cf. Exhibit P with Bates No. 1078-1080.
54. The 2005 Employee Handbook contains the "Procedure for Reporting Harassment or Discrimination," but is entitled "Complaint Procedure." See Exhibit P.
55. Defendant's Employee Handbook is provided in both English and Spanish. See Exhibit P; see also Bates No. 1043-1100.
56. Since Tamayo's constructive discharge in March 2001, Defendant has instituted, with the aide of counsel, the following practices and policies for preventing and deterring harassment:
a. At initial employment, every employee receives an orientation packet which includes the Harris Farms Sexual Harassment Policy, Procedures for Reporting Harassment or Discrimination, Harris Farms Open Door Policy, a pamphlet on harassment and discrimination from the California DFEH, the employee handbook, and general orientation materials. The materials were prepared in 2004, and the employee handbook was updated in 2005 and contains the harassment policy and reporting procedures. A "Complaint Procedure" card is also distributed to employees, which provides contact information and states that Defendant will not retaliate or tolerate retaliation against an employee who makes a complaint.
b. After the polices and procedures are reviewed with the employee, the employee is shown a video made by Farm Employers Labor Service on sexual harassment.
c. Every January, each employee is again given materials relating to sexual harassment and reporting to remind them of the policies and procedures.
d. Posters regarding harassment and discrimination, as well as the reporting procedure, are posted at four different bulletin boards and the portable toilets in the fields.
e. Each manager and supervisor undergoes annual training on harassment prevention and deterrence, the most recent being April 2005. Alaniz Schraeder has provided similar training for many years and will continue to train managers and supervisors on a regular basis.
f. Additionally, employees attend regular meetings and "tail-gate" training on different topics, including sexual harassment. The most recent training occurred in May 2005, and included a sexual harassment video, training on violence and sexual harassment, company policies, and interactive scenarios. The employees were provided information on the law prepared by the DFEH, as well as a card containing contact information and emergency numbers. This type of training has been utilized by Harris Farms since 2002. Training on sexual harassment and other employment issues will occur at a minimum of three times per year, with the next "tail-gate" training session to occur in October 2005.
The orientation packet is attached as Exhibit P.
Defendant's sexual harassment and retaliation policies are reviewed annually and revised with the assistance of Alaniz Schraeder. See Alaniz Declaration at ¶ 14. Richard Alaniz is a partner in Alaniz Schraeder, a Houston, Texas based law firm that specializes in labor and employment issues. Mr. Alaniz is board certified in labor and employment law and he and his firm regularly advises clients regarding harassment issues, provides counsel for policies and procedures and investigation, presents seminars and training on harassment issues, conducts investigations for clients. See id. at ¶¶ 3-10.
See Gomez Declaration at ¶ 13(a); Exhibit I.
The video is attached as Exhibit Q. Defendant initially submitted Exhibit Q as a DVD disk, but the Court and Plaintiffs were unable to view the disk for technical reasons. Defendant has resubmitted Exhibit Q in the form of a VHS video-cassette and no further technical problems have been encountered to the Court's knowledge.
See Alaniz Declaration at ¶ 17.
The certificates of completion and sign-in sheets are attached as Exhibit R and the materials presented at the training sessions are attached as Exhibit S.
The contact card is Exhibit U.
Gomez Declaration at ¶ 14.
57. Since June 2002, Defendant has conducted approximately 14 "tail-gate" safety meetings in which sexual harassment is a topic for discussion. See Exhibit T.
58. The content of the tail-gate meetings and the person who conducts each of the tail-gate meetings is unclear, although Gomez has conducted several tail-gate meetings. See id. Additionally, the law firm of Alaniz Schraeder have assisted in the design and implementation of the tail-gate meetings. See Alaniz Declaration at ¶ 10.
59. Notes behind the May 2004 tailgate meetings show that it was discussed that a victim does not have to be of the opposite sex/the harasser may be man or woman; the harasser may be a supervisor, an agent of the employer, a supervisor of another area, a co-worker, or a non-employee; the victim does not necessarily have to be the one who is harassed, but could be anyone affected by the offensive conduct; sexual harassment may occur without economic injury or discharge; and the harasser's actions must be unwelcome. See Exhibit T.
60. Defendant has provided the sign-in sheets for each of the tail-gate meetings from June 2002 to the present. Behind nearly every sign-in sheet for these tail-gate meetings is some combination (in both Spanish and English) of Harris Farms's harassment policy, a DFEH sexual harassment pamphlet with DFEH contact information, and a Farm Employer Labor Services handout on harassment. The Court concludes that the documents behind the sign-in sheets are copies of documents distributed to Defendant's employees at these meetings. See Exhibit T.
Behind the most recent tail-gate meeting sign-in sheet (May 2005), is a memorandum that indicates the Sexual Harassment Policy, the Open Door Policy, the Complaint Procedure, State of California handout on harassment, and an emergency contact card was distributed and a video was played. See Exhibit T.
The supplemental information, including the contents of Exhibit T, were prepared by Defendant's counsel, Alaniz Schraeder of Houston, Texas. At oral argument, Defendant was represent by local counsel from McCormick, Barstow, Sheppard, Wayte Carruth. The Court asked local counsel whether the documents behind the sign-in sheets were distributed at the tail-gate meetings. Local counsel replied that he did not know. However, given that there is some combination of the documents behind the sign-in sheets, and the same combinations are not behind the sheets, and given that Gomez declares that sexual harassment training occurs and that materials were distributed in the most recent tail-gate meeting (May 2005), see Gomez Declaration at ¶ 15, the Court believes that the documents behind the tail-gate sign-in sheets were distributed to Defendant's employees.
61. Additionally, at the most recent tail-gate meeting in May 2005, Defendant distributed emergency contact numbers to its employees. The telephone numbers for the Farm Manager, the Shop Manager, Human Resources, the Irrigation Manager, the Almond Manager, the Tomato Manager, and the Vegetable Manager are all included and the card is in both English and Spanish. See Gomez Declaration at ¶ 15; Exhibit U.
62. Since Tamayo reported co-worker harassment in January 2001, no evidence has been presented that there have been any other complaints of sexual harassment at Harris Farms to date.
63. There has been no evidence presented that any conduct similar to that of Rodriguez by any other Harris Farms employee has occurred since Rodriguez's retirement in December 1999. Further, no evidence has suggested that Rodriguez's conduct was in any way typical of other supervisors or employees at Harris Farms.
64. Since Tamayo's constructive discharge in March 2001, Defendant has developed the following procedures for investigating harassment complaints:
a. If a complaint is brought, an interview with the complaint is set up as promptly as possible, ideally on the same day. The interview is to take place in a comfortable, confidential place away from other employees. If the employee is not comfortable with an interview on the premises, an off-site location will be arranged. At the beginning of the interview, it is first determined whether the employee requires a translator. If a translator is needed, the employee is give the choice of having Gomez or someone else to translate for them. Any written translations of statements will be prepared by Oscar Olvera.
b. The employee is asked whether he or she is comfortable having their interview tape-recorded.
c. Once those preliminary matters are taken care of, the employee is assured of the confidentiality of his or her statements and participation, and reminded that there will be no retaliation resulting from that participation.
d. The employee is interviewed, using the guidelines provided by the 2005 California Chamber of Commerce Harassment Investigation Checklist and Interview Guidelines, as well as the interview questionnaire developed by Harris Farms.
e. After the preliminary interview, counsel is contacted if significant issues or potential problems are revealed.
f. All potential witnesses, including the accused harasser, are interviewed in a like manner.
g. Follow-up interviews are conducted as necessary in order to clarify, corroborate, or obtain additional information.
h. After all potential witnesses and employees with knowledge of facts are interviewed and re-interviewed, any additional investigation is conducted at that time, using the above-referenced guidelines and the guidelines provided by the seminars. Additional evidence, if any, is gathered and counsel is consulted with issues and concerns.
i. A follow-up conversation is had with the complaining employee and the results of the investigation are discussed.
j. The situation continues to be monitored to ensure that no retaliation or retribution results from the investigation or subsequent action.
The election of translators form is Exhibit J.
The tape-recording form is Exhibit K.
The chamber of commerce investigation checklist is Exhibit L.
The chamber of commerce interview guidelines are Exhibit M.
The Harris Farms questionnaire is Exhibit N (questions for complainant) and Exhibit O (questions for alleged harasser).
Plaintiffs have made no criticisms about the substantive provisions of this investigative procedure. Rather, Plaintiffs primary complaint is that Gomez will be the person conducting the investigations.
65. Gomez is the person primarily responsible for investigation of harassment complaints and will consult labor and employment attorneys (Alaniz Schraeder) when she believes it is necessary.See Gomez Declaration at ¶ 12.
66. Since July 2004, Gomez has taken seven classes and/or seminars regarding the prevention and investigation of sexual harassment.
67. In July 2004, Gomez completed:
a an 18 hour course on internal investigation presented by the Council on Education Management, in association with George Washington University School of Business. The course's focus was conducting harassment investigations and preventing harassment and retaliation.
b. an 18 hour certificate program for human resources generalists, also presented by the Council on Education Management, in association with George Washington University School of Business. The subject matter included discrimination, harassment and retaliation investigation and prevention.
c. a 12 hour continuing education course entitled Employment Discrimination Law Update, presented by the National Employment Law Institute. The subject matter of the course included significant developments in the law of harassment, training on conducting investigations, and preventing harassment and discrimination.See Gomez Declaration at ¶¶ 4-6.
The course materials and certificate of completion are Exhibit A.
The course materials and certificate of completion are Exhibit B.
The course materials and certificate of completion are Exhibit C.
68. In 2005, Gomez completed
a. a program entitled AB 1825: California Training Mandate for Supervisors, presented by TPO Human Resources Management. The program focused directly on harassment law, investigation and prevention. (February 2005)
b. a training program presented by Alaniz Schraeder, L.L.P., entitled Sexual Harassment Training for Managers and Supervisors. The training focused on sexual harassment investigation and prevention. (April 2005)
c. an interactive course entitled Sexual Harassment Prevention and Training, presented by the California Department of Fair Employment and Housing ("DFEH"). The training included prohibition, prevention, and correction of harassment. (July 2005)See Gomez Declaration at ¶¶ 7-9.
The course materials are Exhibit D.
The course materials and certificate of completion are Exhibit E.
The course materials and certificate of completion are Exhibit F.
69. Also in July 2005, Gomez attended a seminar entitled EEOC @ 40, presented by the San Francisco office of the EEOC. The subject matter of the course included prevention and investigation of harassment complaints. See Gomez Declaration at 10.
The course materials and certificate of completion are Exhibit G.
70. If Gomez is unavailable, Steve Warren, the Human Resources Director for Harris Ranch Restaurant, will conduct an investigation. See Gomez Declaration at ¶. Warren's qualifications are not described other than his title with Harris Ranch Restaurant and that he attend in July 2005 the EEOC seminar described above. See September 2005 Declaration of Marcia Mitchell at ¶ 8.
71. Ms. Gomez is quoted in a February 4, 2005, article in The Produce News as saying that it had appeared that Rodriguez and Tamayo were having an affair, that some 30 employees supported this view, that Tamayo's story kept changing, that Tamayo was not credible, that Tamayo was suspended for one day in March 2001, and that Tamayo then quit. In the same article, John Harris, the President of Harris Farms, echoed similar sentiments through an e-mail provided to The Produce News. The e-mail was purportedly sent to employees of Harris Farms on January 24, 2005. See Exhibit B to Plaintiffs's Motion to Amend Judgment to Include Equitable Relief.
72. Chrisco has retired and no longer is employed by Defendant.
73. Other than the Spanish language August 18, 1999, memorandum, no further specific examples or specific evidence of nonsensical translations have been presented to or identified for the Court.
EEOC has submitted the declaration of Evangelina Hernandez. Hernandez was a co-counsel for the EEOC at trial. In her declaration, Hernandez declares that she is fluent in Spanish, as it is her first language, and took graduate level Spanish courses in the 1980's. Hernandez then translates a Harris Farms's permission to tape-record form. Hernandez indicates that there are grammatical and spelling mistakes. However, unlike the court interpreter/translator who translated the August 18, 1999, memo, there is no indication that Hernandez is approved by all parties or is a certified translator. If Plaintiff believes that Defendant's Spanish translations are incomprehensible or grossly mistranslated, then it should provide a translation from a certified translator or a translator whom the parties stipulate as being qualified. That Ms. Hernandez may speak Spanish and have taken graduate level Spanish classes approximately twenty-years ago does not mean that she is qualified to translate documents or offer an opinion on the quality of a translation. Indeed, there is no indication that Ms. Hernandez translates or has experience translating documents on any basis. Additionally, Ms. Hernandez objected to the quality of the court interpreter's translation in front of the jury at trial, an interpreter supplied by the EEOC and whom Defendant agreed was qualified. As the EEOC supplied the interpreters/translators during trial, there is no apparent reason why these interpreters/translators could not also review documents that EEOC believed to be mistranslated or poorly translated. An interpreter is subject to the rules of evidence relating to expert witnesses, see Fed.R.Evid. 604, and the "trial court has broad discretion in determining the fitness and qualifications of interpreters." Chee v. United States, 449 F.2d 747, 748 (9th Cir. 1971). As such, the Court will disregard that portion of Hernandez's declaration. However, even if considered, the translation of the recording form is not incomprehensible. The translation could be "smoother," but the two translated sections by Ms. Hernandez indicate that either the employee will consent to giving a tape-recorded statement or will instead give an unrecorded statement. The permission to tape-record form is not nearly as poor as the August 18, 1999, memorandum.
CONCLUSIONS OF LAW
Based on the above findings, the Court makes the following conclusions of law:1. Tamayo was retaliated against by Defendant in February/March 2001 for complaining about sexual harassment and the retaliation was committed by Chrisco and Gomez. Given the lack of support for a conclusion that Tamayo was herself engaging in inappropriate sexual gossip/comments, the Court concludes that the retaliation was intentional for purposes of 42 U.S.C. § 2000e-5(g)(1).
2. Defendant's conduct with respect to Tamayo's 1999 and 2001 complaints of sexual harassment was lacking and, at most, was negligent or reckless. The Court cannot conclude, however, that Defendant engaged in intentional unlawful employment practices for purposes of 42 U.S.C. § 2000e-5(g)(1).
3. The written sexual harassment policy in effect during Tamayo's employment (the 1989 policy) was out of date. However, as of 2003, Defendant has adopted a much improved written sexual harassment policy. The Ninth Circuit has held that a defendant's harassment policy may satisfy the first prong of the Faragher/Ellerth defense where those policies: (1) defined sexual harassment; (2) set forth a reporting procedure; (3) stated that employees who violated the policy would be disciplined; and (4) assured employees that no reprisals would be made against those who complain. Nichols v. Azteca Restaurant Ent., 256 F.3d 864, 877 (9th Cir. 2001); Montero v. AGCO Corp., 192 F.3d 856, 862 (9th Cir. 1999). The "Harris Farms Sexual Harassment Policy," found in the 2004 orientation packet, and the "Policy Against Harassment and Discrimination," found in the 2003 and 2005 employee handbooks, exceed the characteristics found to be reasonable in Nichols and Montero.
4. The examples of improper or harassing conduct described in the "Harris Farms Sexual Harassment Policy" and the "Policy Against Harassment and Discrimination," include conduct that formed the basis of Tamayo's 1999 and 2001 complaint, i.e. verbal conduct, derogatory comments, questions about a person's sexual practices, sexually oriented remarks, physical conduct, assault, unwanted touching, and grabbing. See Exhibit P.
5. Since 2003, Defendant has regularly distributed its Sexual Harassment Policy, materials from the DFEH and the Farm Employers Labor Service, and its open door policy. Since 2004, Defendant has regularly distributed its procedures for making a complaint. Following the policies and complaint procedures would eliminate the harassing conduct that formed the basis of Tamayo's 1999 and 2001 complaints.
6. There has been no, or at least no sufficiently persuasive, evidence identified or presented that shows that Defendant's employees do not understand or do not comprehend the reporting procedures, the DFEH materials, the Open Door Policy, or the Sexual Harassment Policy. The only evidence of non-comprehension was in 1996, when Tamayo did not understand all of the words at the March 1996 harassment training. There is no current or recent evidence, and the single 1996 evidence is stale.
7. Other than the August 18, 1999, memorandum, there has been no, or at least no sufficiently persuasive, evidence identified or presented that shows Defendant mistranslates documents or memorandum so poorly that the poor translations render anti-harassment efforts or investigations inadequate or unreasonable. There is no current or recent evidence of poor or nonsensical translations, and the single 1999 memo is stale.
8. Rodriguez has not worked for Defendant since December 1999. There has been no, or at least no sufficiently persuasive, evidence presented or identified that shows Rodriguez's conduct was typical of supervisors at Harris Farms. Given the new policies that are in place and regularly distributed, the extreme nature of Rodriguez's conduct, Rodriguez's absence from Harris Farms for nearly six years, and no indication that Rodriguez's conduct was symptomatic of other supervisors, the Court cannot conclude that there is a reasonably cognizable danger of harassment like Rodriguez's of recurring at Harris Farms. See W.T. Grant Co., 345 U.S. at 633; Cummings, 316 F.3d at 898; HBE Corp., 135 F.3d at 558; Webb, 98 F.3d at 1068-69.Orantes-Hernandez, 919 F.2d at 564; Hacienda Hotel, 881 F.2d at 1819.
Similarly, although the Court has found that Defendant did not engage in intentional conduct that was unlawful, given the extensive changes in policies, procedures, and investigative guidelines; the frequency with which Defendant's employees are given information regarding harassment, complaint procedures, the Defendant's policies, and are encouraged to make complaints; the termination of two of the three individuals who gossiped/threatened Tamayo, and the absence of complaints since 2001, the Court concludes that recurrence of conduct forming the basis of Tamayo's 2001 complaint of sexual harassment is speculative and not reasonably cognizable. See W.T. Grant Co., 345 U.S. at 633; Cummings, 316 F.3d at 898; HBE Corp., 135 F.3d at 558; Webb, 98 F.3d at 1068-69. Orantes-Hernandez, 919 F.2d at 564; Hacienda Hotel, 881 F.2d at 1819 . Although some of the changes are recent, the changes in investigation protocol began in 2001, changes in the harassment policy have been in place for approximately two years, Defendant frequently distributes these policies and procedures and raises harassment issues during tail-gate meetings which occur approximately three times per year, Defendant did have an anti-harassment policy (although out of date) during 2001, Defendant successfully addressed Martinez's 1996 complaint of sexual harassment, and Defendant provided sexual harassment training seminars for management/supervisors in 1996, 2001, and 2005. The Court does not believe that Defendant's conduct is the type of suspect, "last minute" changes condemned in Goodyear Aerospace. Cf. Goodyear Aerospace, 813 F.2d at 1544-45 (holding that a company that stopped discriminating against an employee, who had filed two complaints with the EEOC, by promoting the employee and promising not to retaliate a second time did not provide sufficient assurance that further discrimination and retaliation would not occur).
9. The procedures for investigating harassment have been in development since 2001. The substance of Defendant's investigative procedures are unchallenged by Plaintiffs and reasonably and adequately address the criticisms and shortcomings of Defendant's 1999 and 2001 harassment investigations.
10. As shown by Reyes, at least some of Defendant's supervisors do not realize that they have a duty and obligation to report harassment that they witness, even though the "Policy Against Harassment" found in the 2004 orientation packet expressly states this obligation. See Exhibit P.
11. Gomez remains in a high, decision-making capacity at Harris Farms. As Human Resources Director, Gomez is responsible for sexual harassment investigation. Since the 2001 investigation, Gomez has undergone additional training with three of the classes/seminars alone totaling 48 hours worth of instruction. Nevertheless, Gomez is responsible for investigation and will still play a significant, if not dispositive, role in discipline. Furthermore, the quotes appearing in The Produce News do not indicate remorse, nor has Gomez indicated remorse in her September 2005 declaration. Injunctive relief is appropriate where the individual who has discriminated remain a primary decision makers. See Ilona of Hungary, 108 F.3d at 1579. Although Defendant's policies encourage reporting and state numerous times that the Defendant will not retaliate or permit retaliation, Gomez still remains responsible for investigations and plays a role in discipline, has not shown remorse, and Defendant has not shown any "checks or balances" over Gomez. Given these considerations, the Court finds that there is cognizable danger of retaliation for making complaints. See Ilona of Hungary, 108 F.3d at 1579; Hacienda Hotel, 881 F.2d at 1819.
13. Injunctive relief is appropriate to remedy an unlawful employment practice where the defendant has intentionally engaged in that unlawful employment practice. See 42 U.S.C. § 2000e-5(g)(1).
14. In order to make out a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there was a causal link between her activity and the employment decision. Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 965 (9th Cir. 2004). Proximity of time between protected conduct and an adverse employment action may support an inference of causation, but the timing may not exceed three months. See Mannatt v. Bank of America, 339 F.3d 792, 802 (9th Cir. 2003) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) for the proposition that a lapse of three to four months between protected activity and adverse action was insufficient to establish causation); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (lapse of under 3 months sufficient to raise inference of causal connection). Conduct "is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity."Elvig, 375 F.3d at 965; Ray v. Henderson, 271 F.3d 1234, 1243 (9th Cir. 2000).
15. Defendant intentionally engaged in an unlawful employment practice by retaliating against Tamayo in 2001 for her complaint of sexual harassment, and Defendant has not provided sufficient assurances that there is no reasonably cognizable danger of retaliation recurring. See Ilona of Hungary, 108 F.3d at 1579; Hacienda Hotel, 881 F.2d at 1819.
16. Once intentional discriminatory or unlawful employment conduct is found, "district courts have broad equitable powers to fashion relief for violations of Title VII that will eliminate the effects of past discrimination," Bouman, 940 F.2d at 1233, and have a "duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Albermarle Paper Co., 422 U.S. at 418.
17. Injunctive relief is appropriate to prevent the reasonably cognizable danger of retaliation by Defendant.
EQUITABLE RELIEF
A. General Injunctive Relief
Harris Farms and its owners, officers, agents, employees, successors, assigns, and all persons in active concert or participation with them shall be and are hereby permanently enjoined and restrained from retaliating against any person who has in the past, or during the term of this Order, complained about, opposed, give testimony concerning, or otherwise participated in any inquiry into, sexual harassment or other discrimination at any location owned and/or operated by Defendant.
B. Specific Injunctive Relief
1. Additional Training
a. As part of Defendant's annual sexual harassment prevention and deterrence training for its supervisors and managers, see Gomez Declaration at ¶ 15(e), Defendant will expressly inform its managers and supervisors that they are obligated, and have the duty, to report any retaliation or harassment that they witness, irrespective of whether the "harassee" makes a complaint. Defendant is also to emphasize that this is company policy and show its managers and supervisors where this policy may be found. {Currently, it is found in the "Policy Against Harassment" that is provided in the 2004 Orientation Packet. See Exhibit P.}
b. At all further "tail-gate" meetings or other training sessions, which occur at least three times per year as per company policy, see Gomez Declaration at ¶ 15(f), the current Farm Manager or another upper level management official other than Ms. Gomez, will appear, encourage employees to make a harassment complaint if they have one, and assure the employees that the Defendant will not retaliate or permit retaliation against them.
This is not to say that Gomez may not conduct the employee training meetings. Rather, an additional member of Defendant's upper management must also appear.
2. Record Keeping and Reporting
a. Defendant will keep records of its investigation into, and copies of documents related to, complaints of sexual harassment. Defendant will also keep records regarding whether a person who has complained about harassment or who has participated as a witness in an investigation of sexual harassment has been disciplined. Defendant will inform the EEOC in writing regarding an employee if discipline occurs within three months of that employee's sexual harassment complaint or participation as a witness in a sexual harassment investigation. Defendant will so inform the EEOC on the first day of May and November. If the EEOC reasonably believes that retaliation may have occurred, the EEOC may make additional written requests for the documents/records relevant to the harassment investigation and the disciplined employee. Defendant will make this information available to the EEOC within fourteen (14) days of such written requests.
For purposes of this order, a person accused of harassing behavior as part of an initial sexual harassment complaint is not considered a witness who participated in a sexual harassment investigation.
b. Defendant will also provide documentation that, as part of Defendant's annual harassment prevention and deterrence training, it has expressly informed its managers and supervisors that they are obligated, and have the duty, to report any retaliation or harassment that they witness, irrespective of whether the harassee makes a complaint. Defendant is to send this documentation to the EEOC within fourteen (14) days of completion of the annual training.
c. Defendant will also provide documentation that, at all further "tail-gate" meetings or other training sessions, which occur at least three times per year as per company policy, the current Farm Manager or another upper management official other than Ms. Gomez, appeared, encouraged employees to make a harassment complaint if they had one, and assured the employees that the Defendant will not retaliate or permit retaliation against them. Defendant is to send this documentation to the EEOC within fourteen (14) days of completion of the tail-gate meetings or scheduled harassment training session.
3. Posting
Defendant will post the following notice, or a notice agreed upon by Defendant and the EEOC, in both the English and Spanish languages in a clearly visible location frequented by employees at each location owned and/or operated by Defendant within fourteen (14) days from entry of this Order:
NOTICE TO ALL EMPLOYEES
This notice is being posted by order of the Court in a lawsuit brought against Harris Farms, Inc. by the Equal Employment Opportunity Commission and Olivia Tamayo. [CIV F 02-6199 AWI LJO] On January 21, 2005, a federal jury determined that Harris Farms violated Title VII of the Civil Rights Act of 1964 by subjecting Ms. Tamayo to a sexually hostile work environment, retaliating against her when she complained, and constructively discharging her.
Under the Court's Judgment, Harris Farms has been ordered not to retaliate against employees who make a complaint of sexual harassment or participate as a witness in a sexual harassment investigation.
Should you have any complaints of retaliation, you can contact the Fresno Office of the EEOC at:
Fresno Local Office
1265 W. Shaw Ave., Suite 103 Fresno, CA 93711 Tel: (559) 487-5793 Fax: (559) 487-5053 Toll Free: (800) 669-4000
The EEOC charges no fees for its services, and has employees that speak languages other than English, including Spanish.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
4. Cost and Duration of Injunctive Relief
Defendant will bear the costs of all injunctive relief. The duration of the specific injunctive relief under this order is five (5) years from the entry of this order. The general injunctive relief is permanent.
Accordingly, IT IS HEREBY ORDERED that the Plaintiffs' Motion to Amend Judgment to include Equitable Relief is GRANTED in part. The judgment is hereby amended to include the injunctive relief described under the "Equitable Relief" section of this order.
IT IS SO ORDERED.