Opinion
CIVIL ACTION NO. C-07-4086-PVT.
February 11, 2009
WILLIAM R. TAMAYO — #084965 (CA), JONATHAN T. PECK — # 12303 (VA), SANYA HILL MAXION — # 18739 (WA), EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, San Francisco District Office, San Francisco, California, Attorneys for Plaintiff.
RONA P. LAYTON — #121238 (CA), SIMS LAYTON, San Jose, CA, Attorneys for Defendant.
CONSENT DECREE
I. INTRODUCTION
On September 29, 2005, Plaintiff, Equal Employment Opportunity Commission ("EEOC"), filed this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and Title I of the Civil Rights Act of 1991 against Defendant John H. Lim, d/b/a Drain Doctor ("Defendant John H. Lim"). Plaintiff alleged that Defendant John H. Lim subjected Maryanne Miranda to unlawful sex discrimination because of her pregnancy when it terminated her on May 12, 2005.
The EEOC and Defendant want to conclude fully and finally all claims arising out of the above action without the expenditure of further resources and expenses in contested litigation. They enter into this Consent Decree to further the objectives of equal employment opportunity as set forth in Title VII.
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
1. This Court has jurisdiction over the subject matter and the parties to this action.
2. This Consent Decree constitutes a full resolution of EEOC's complaint in Civil Action No. C-07-4086-PVT and the underlying charge of discrimination filed with the EEOC.
3. This Consent Decree shall become effective upon its entry by the Court.
4. Each party shall bear its own costs and attorney fees.
IV. MONETARY RELIEF
1. In settlement of the claims for employment discrimination alleged in the Complaint, Defendant John H. Lim agrees to pay the gross sum of $25,00.00 to Ms. Miranda.
2. The settlement amount identified in paragraph one is being paid in complete compromise of all disputed issues arising out of the Complaint filed in this lawsuit, Civil Action No. C-07-4086-PVT, U.S. District Court for the Northern District of California.
3. Payment to Ms. Miranda shall be made in equal monthly installments of $1,000.00 and on the first day of each month thereafter until fully paid (monthly payments have been made since July 1, 2008). However, notwithstanding full payment of the monetary obligations under and pursuant to this Consent Decree herein, Defendant shall be bound to perform all other terms, covenants and conditions herein, unless terminated by an order of this court or pursuant to the terms of this Consent Decree herein.
4. Should Defendant John H. Lim fail to make a required payment by the 10th of any month that said payments are due, the EEOC shall give Defendant John H. Lim and counsel for Defendant John H. Lim, Rona P. Layton, written notice of the alleged default by certified mail, and thereafter Defendant John H. Lim shall have ten days within which to cure the alleged default. In the event Defendant John H. Lim then makes payment of the amount in default within ten days after it receives notice of the alleged default by certified mail, the payment schedule shall remain in effect. In the event, however, that Defendant John H. Lim fails to make any payment EEOC within the aforesaid ten days, EEOC shall have the option without further notice to accelerate all of the remaining installments, declare all of them due and payable and may move this court for entry of judgment for the entire unpaid balance of the indebtedness herein under the provisions of California Code of Civil Procedure Section 664.5 and proceed on an ex parte basis for entry of judgment therein. Defendant hereby executes a stipulation for entry of judgment, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein. Defendant, preserving all rights to be notified of an ex parte hearing, waives and excuses Plaintiff from compliance with local rules of this court, or the Federal Rules of Civil Procedure in seeking judgment, based on the executed stipulation herein. Defendant waives his right to a trial on a matter of disputed law or fact, or any right to have a jury or judge hear and consider his case, and stipulates that a Magistrate Judge of this court may enter judgment upon the filing of the Stipulations herein. Defendant waives any right to seek a reinstatement of the payment program if the Defendant defaults herein and fails to cure within the time allowed under this Consent Decree. Defendant waives any right to appeal or collaterally attack this Consent Decree and acknowledges that this Consent Decree resolves all claims by and among the parties.
5. Defendant does hereby grant a security interest in and to those certain items of personal property described herein as follows: 2003 Spartan Trailer Model 758; 2004 Toyota Pickup Truck, License Plate #4JC-5145; 2007 Trailer, License Plate #4JC5145, by way of the execution as requested by Plaintiff herein, of various transfer documents mandated by the California Department of Vehicles, or similar agency herein. The security interest shall be first and senior to any other claim thereunder, in granting all rights to and in favor of Plaintiff, under Division 9 of the California Commercial Code, which includes but is not limited to, the right to foreclose in the event of default thereunder.
6. Defendants, and each of the same, shall keep and maintain all payments, and each of the same, current under and pursuant to the terms of the agreement. In the event of default which is not cured within ten days after Defendant receives notice of the alleged default by certified mail, as described in Section 4 of this Article IV, Plaintiff shall have the right to accelerate all of the remaining installments and each of the same, declare all of the same due and payable, and proceed to enforce any and all remedies as permitted under law, which may include levy and execution upon the assets, and each of the same, of the Judgment Debtors herein, and moreover, foreclosure upon any item of collateral, consistent with Division 9 of the California Commercial Code. Defendant shall be obligated to deliver the collateral to a place of choosing, in writing, as demanded by Plaintiff, shall keep and maintain the collateral in good condition thereunder, shall keep the collateral insured up to its fair market value thereunder, shall avoid encumbering the property with any and all other junior liens and encumbrances, shall keep the property safe and secure, and shall avoid taking any action which would damage, injure or harm the collateral, or any part therein. To the extent that the collateral is in any auto accident, casualty, calamity, or other disaster, and to the extent of any insurance proceeds, that the insurance proceeds shall be paid over to the Plaintiff herein, and if received, shall be applied on account of the outstanding indebtedness, or any part thereof. Defendants shall not move the collateral to any place outside the State of California, and shall use the collateral in the ordinary course of business of the Defendants herein, or in any other manner consistent with its regular use thereunder.
7. Defendant shall keep and maintain liability insurance the amount of not less than $100,000/$300,000 as issued by admitted automobile insurer under the laws of the State of California.
8. Defendant represents that they are the owner of the collateral and know of no other competing claim, interest, lien or encumbrance therein.
9. Defendant shall hold Plaintiff harmless of any loss or liability, damage or claim arising out the use, possession, custody, control, title or ownership of the collateral and provide independent counsel for on behalf of Plaintiff in the event that any action be taken or threatened herein. Defendant shall covenant, warrant, promise and represent that the Defendant will not engage in any acts, conduct or activities which would cause or create liability and will refrain from any act causing personal injury or property damages herein.
10. If the $25,000 (Twenty five thousand) settlement is not fully paid by December 31, 2008, then Defendant John H. Lim shall pay 6% simple interest at the rate of .5%per month on the remaining balance until fully paid.
11. There will be no prepayment penalty should Defendant pay the entire amount due at any time.
12. The monetary relief shall be issued in checks drafted to Maryanne Miranda and mailed to Maryanne Miranda. Defendant John H. Lim shall make all payments called for herein in the form of a business check, cashier's check, or certified check. Defendant John H. Lim will also issue an IRS Form 1099 for the checks pursuant to this paragraph.
13. Defendant John H. Lim will mail copies of each payment to Sanya Hill Maxion, Senior Trial Attorney, for the EEOC at 350 The Embarcadero, Suite 500, San Francisco, CA 94105 within ten (10) days of mailing the check to Ms. Miranda. Defendant John H. Lim shall also mail to Sanya Hill Maxion a copy of the IRS Form 1099 in accordance with Federal law.
V. NON-MONETARY RELIEF
1. Sex (Pregnancy) Discrimination: Defendant John H. Lim and its successors and assigns are enjoined from discriminating on the basis of sex and pregnancy.
2. Retaliation: Defendant John H. Lim and its successors and assigns are enjoined from engaging, implementing or permitting 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 sex (pregnancy) discrimination made unlawful under Title VII; 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 sex discrimination or pregnancy discrimination or identified as a possible witness in this action.
3. Sex (Pregnancy) Discrimination Policy: Within ninety (90) days of this decree, Defendant John H. Lim agrees to adopt and implement an anti-discrimination policy which: (i) includes definitions of pregnancy discrimination and sex discrimination and provides examples to supplement the definitions of pregnancy discrimination and sex discrimination and provides examples to supplement the definitions, and (ii) includes strong non-retaliation language; (iii) provides that complaints of pregnancy discrimination and sex discrimination and/or retaliation will be accepted by Defendant John H. Lim both in writing and orally.
Defendant John H. Lim will distribute the policy to all current employees, whether temporary or permanent, upon finalization of the policy. Thereafter, Defendant John H. Lim will distribute a copy of the policy to all newly hired employees, whether hired into temporary or permanent positions, at the time of hire.
4. Anti-Discrimination Training
(i) Defendant John H. Lim or counsel for Defendant John H. Lim, P. Sophie Mai, will develop and present to all of its employees, supervisors and managers, including Vivian Cabebe, mandatory training, the cost of which shall be borne by Defendant John H. Lim. The training will take place within one year after entry of this Consent Decree.
(ii) The training described in the preceding paragraph shall be provided by experienced employment discrimination educators or by Defendant's attorney and shall inform the employees about the issues of sex discrimination and pregnancy discrimination in the workplace. The training will include examples and behavior that will not be tolerated at Defendant John H. Lim. The training will further inform each participant that he or she is responsible for knowing and complying with the contents of Defendant John H. Lim's antidiscrimination policy.
(iii) Defendant John H. Lim shall provide to the EEOC thirty (30) days in advance of the training the course syllabus.
Defendant John H. Lim will retain records of the training session, listing the dates on which it held the training and identifying the persons who attended and those who did not attend.
VI. REPORTING
1. Six months after entry of the decree and every six months thereafter, Defendant John H. Lim will submit reports to the Commission summarizing any requests for pregnancy accommodation or complaints of pregnancy discrimination received by Defendant John H. Lim during the preceding six-month period. The reports will include the identities of the complainant(s) and the alleged discriminating employees or managers and a summary of action taken in response to the request or complaint.
2. Within forty-five (45) days after entry of the Consent Decree, Defendant John H. Lim will send to the EEOC a copy of the documents reflecting the policies, procedures and practices which it has modified in accordance with Section V above.
3. Within thirty (30) days after completion of the training described in Section V above, Defendant John H. Lim will send to the Commission appropriate verification of its completion of training for its employees and the training materials.
4. Defendant John H. Lim shall submit a final report to the EEOC thirty (30) days before the Consent Decree expires containing a statement verifying its compliance with the terms of the Consent Decree.
5. Maryanne Miranda's employment record shall reflect a voluntary resignation. Regarding any inquiries from prospective employers to Defendant John H. Lim, Defendant John H. Lim shall only tell the prospective employers the dates of Ms. Miranda's employment and her wages. Said contact person shall make no reference to the underlying charge in this action or this lawsuit, or its resolution.
6. Defendant John H. Lim shall post a copy of an anti-discrimination notice in a clearly visible location frequented by employees for 30 days following the lodging of this Decree with the Court.
VII. RETENTION OR JURISDICTION AND EXPIRATION OF CONSENT DECREE
1. This Consent Decree shall terminate within three (3) years from the date of entry by the court, unless the EEOC petitions this court for an extension of the Decree because of noncompliance by Defendant John H. Lim. If the EEOC determines that Defendant John H. Lim has not complied with the Consent Decree, the EEOC will provide written notification of the alleged breach to Defendant John H. Lim and will not petition the court for enforcement sooner than thirty (30) days after providing written notification. The thirty-day period following written notice shall be used by the parties for good faith efforts to resolve the issue. If the EEOC petitions the court and the court finds Defendant John H. Lim to be in substantial violation of the terms of the Decree, the court may extend this Consent Decree and issue such orders as may be required to effectuate its purpose.
2. This Court shall retain jurisdiction over this action for the purposes of enforcing the provisions of this Consent Decree.
3. This Consent Decree shall be entered by this court as an adjudication of the rights and liabilities of the parties herein in which the Defendant shall have continuing obligations and each of them as set forth. The United States District Court for the Northern District of California shall keep and retaining continuing jurisdiction for all purposes herein, which may include, but not limited to, the issuance of any other and further relief, such as an injunction, decree or order; the issuance of any order providing for monetary relief; the issuance of any writ of execution, abstract of judgment, personal property lien or other process permitted under F.R.C.P. Rule 69(a) etc. or other under the equitable powers of this court to oversee compliance with this Consent Decree.
4. Plaintiff shall not be obligated to pursue any right or remedy and may decline to pursue such right or remedy in its discretion and without judicial review or supervision and the failure or refusal to proceed with one or more rights or remedies shall not be deemed a waiver to pursue those rights or remedies at any other time or under any other circumstances herein, or any other right or remedy. Plaintiff may accept any performance tendered by the Defendant which is not conforming under the terms thereof without a waiver of demanding full and timely performance or declaring a default, without notice or grace, in the event of such a failure to fully comply under the terms and conditions herein.
Defendant stipulates notwithstanding that the Defendant might leave the jurisdiction of this District herein that the Defendant stipulates that all matters arising out of, based on, and predicated upon compliance with this Consent Decree shall be determined by the United States District for the Northern District of California, save and except Plaintiff may seek to docket the Consent Decree or any monetary or other relief entered thereby in any other District herein under 28 U.S.C. § 1963 or otherwise as allowed by law without any waiver of the jurisdiction of this court herein.
IT IS SO ORDERED:
EXHIBIT A SECURITY AGREEMENT EEOC v. Lim (Drain Doctor) Case No. 07-CV-4086 PVT
Defendant JOHN H. LIM, dba DRAIN DOCTOR hereby warrants, covenants, represents, and agrees to perform the following:Defendant hereby grants a perfected security interest to and on behalf of the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ("EEOC") in and to that certain 2003 Spartan Trailer, Model 758, and that certain 2004 Toyota pickup truck, License Plate #4JC-5145, by way of the execution of that certain application for title or registration transfer, a copy of which is attached hereto marked Exhibit "A" and incorporated by reference, consisting of the backside of the certificate of title.
Defendant shall complete and sign paragraph 1.a., and moreover, complete 3a. through 9b. Plaintiff shall complete paragraph 11 through 13.
Defendant shall make, execute, complete and sign, to make Plaintiff the legal owner of the Trailer by executing and completing Exhibits "B" and "C," copies of which are attached hereto and incorporated by reference as though fully set forth herein in its entirety.
The security interest shall be first and senior to any other claimant herein, in granting all rights in favor of Plaintiff under Division 9 of the California Commercial Code, which includes but is not limited to, the right to foreclose in the event of a default herein.
Defendant shall keep and maintain all payments, and each of the same, under and pursuant to the terms of the agreement. In the event of default which is not cured within ten days after Defendant receives notice of the alleged default by certified mail, as is described in Section 4 of Article IV of the Consent Decree in this matter, Plaintiff shall have the right to accelerate all of the remaining installments, and each of the same, declare all of the same due and payable, and proceed to enforce any and all remedies as permitted under law, which may include levy and execution upon the assets, and each of the same, of the Judgment Debtor herein, and moreover, foreclosure upon any item of collateral, consistent with Division 9 of the California Commercial Code. Defendant shall be obligated to deliver the collateral to a place of choosing, in writing, as demanded by Plaintiff, shall keep and maintain the collateral in good condition thereunder, shall keep the collateral insured up to its fair market value thereunder, shall avoid encumbering the real property with any and all other junior liens and encumbrances, shall keep the property safe and secure, and shall avoid taking any action which would damage, injure or harm the collateral, or any part therein. To the extent that the collateral is in any auto accident, casualty, calamity, or other disaster, and to the extent of any insurance proceeds, that the insurance proceeds shall be paid over to the Plaintiff herein, and if received, shall be applied on account of the outstanding indebtedness, or any part thereof. Defendant shall not move the collateral to any place outside the State of California, and shall use the collateral in the ordinary course of business of the Defendant herein, or in any other manner consistent with its regular use thereunder.
Defendant represents that he is the owner of the collateral and know of no other competing claim, interest, lien or encumbrance therein.01/27/2009 01/13/2009
DATED: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ("EEOC") By: __________________________________ Name: ________________________________ Title: _______________________________ DATED: ____________________________________ JOHN H. LIM, dba DRAIN DOCTOREXHIBIT A
ExhibitEXHIBIT B
Exhibit
EXHIBIT C
Exhibit