Opinion
98-CV-1772 (FJS)(TWD)
01-10-2013
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CARROLS CORPORATION, Defendant
FOR PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ElizabethJGrossman Regional Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR DEFENDANT CARROLS CORPORATION Michael Delikat John D. Giansello ORRICK, HERRINGTON & SUTCLIFFE, LLP Jeffrey J. Mayer FREEBORN & PETERS LLP
CONSENT DECREE
1. This cause of action was initiated on November 17, 1998 by the Equal Employment Opportunity Commission ("EEOC"), an agency of the United States Government, to correct unlawful employment practices on the basis of sex. EEOC alleges that Defendant Carrols Corporation ("Carrols") subjected Charging Party Wendy McFarlan and other female employees to sexual harassment, retaliation, and/or constructive discharge in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). Carrols denies having engaged in any unlawful discrimination, harassment, or retaliation, and denies all of the allegations of the complaint.
2. The Parties to this Consent Decree ("Decree") are Plaintiff EEOC and Defendant Carrols.
3. The Parties have engaged in extensive and comprehensive settlement negotiations and desire to settle this action, and stipulate to the entry of this Decree as final and binding between the Parties. Not less than thirty (30) days before Carrols executes any agreement to sell, assign, consolidate or merge the Company with or into a third party, it will provide written notice and a copy of this Decree to any prospective successors or assigns and will simultaneously inform EEOC of the same.
4. The terms of this Decree represent the full and complete agreement of the Parties. The Parties have agreed that this Decree may be entered into without findings of fact and conclusions of law having been made and entered by the Court.
In consideration of the mutual promises of each Party to this Decree, the sufficiency of which is hereby acknowledged, the Parties agree as follows, and the Court finds appropriate, and it is therefore ORDERED, ADJUDGED, AND DECREED that:
GENERAL PROVISIONS
5. This Decree resolves finally the Complaint filed by EEOC in this case, and resolves EEOC's claims in regard to, and EEOC waives further processing of, any of the individual EEOC Charge Numbers listed in Exhibit A to this Decree.
6. This Decree in no way affects EEOC's right to process any other pending or future charges that have been or may be filed against Carrols and to commence civil actions on any such charges as EEOC sees fit. EEOC reserves all rights to proceed regarding matters not covered in this Decree.
7. The Parties agree and the Court finds that the Court has jurisdiction over the subject matter and the Parties to this action, venue is proper, and all administrative prerequisites have been met.
8. The parties agree that the United States District Court has jurisdiction to enforce this Decree and its terms. Either party may petition the Court for relief under this Decree.
9. Should EEOC believe that Carrols has breached this Decree, it will notify Carrols' General Counsel in writing, by email and overnight mail, of the nature of the dispute and identify the provision(s) that it believes Carrols has breached and the steps it believes Carrols should take to cure the alleged breach. Absent a showing by any party that the delay will cause irreparable harm, Carrols shall have twenty (20) days from the date of notice ("Dispute Resolution Period") to try to resolve or cure the breach. The Parties agree to cooperate with each other and use their best efforts to resolve any dispute referenced in EEOC's notice. After the Dispute Resolution Period expires, EEOC may initiate an enforcement action in this Court, seeking all available relief or remedies.
MONETARY RELIEF
10. Carrols will pay monetary relief in the total sum of two and one-half million dollars and no cents ($2,500,000.00) (the "Claim Fund") to the Claimants as designated in Exhibit B. Monetary relief will include payments in the nature of back pay and compensatory damages. EEOC has allocated two hundred five thousand eight hundred seventy-six dollars and no cents ($205,876.00) of the Claim Fund to claims for lost earnings to Claimants as designated in Exhibit B. With respect to the payment of back pay, Carrols will provide a W-2 Statement for those payments and be responsible for deducting applicable withholdings. EEOC has allocated two million two hundred ninety-four thousand one hundred twenty-four dollars and no cents ($2,294,124.00) to Claimants as compensatory damages, as designated in Exhibit B. As to payment for compensatory damages, Carrols is not required to withhold taxes or make employer contributions required to be made on payment of wages, except that it shall issue IRS Forms 1099 for these payments at the time required by law.
11. Within ten (10) days of entry of this Decree, or twenty (20) days after EEOC provides Carrols with the legal name, social security number, and address of each Claimant, whichever is later, Carrols will distribute to each Claimant her portion of the Claim Fund as specified by EEOC in Exhibit B, which will be filed under seal. Payment will be made by United States Postal Service, return receipt requested. Carrols will provide EEOC with copies of the check(s), Forms 1099 and W-2 Statements concurrent with Carrols's providing them to the Claimants. Any check not presented to Carrols' bank for payment within one hundred and eighty (180) days of its issuance will be cancelled, and Carrols will remit the amount thereof to a 501(c)(3) charitable organization, agreed upon between the Parties, whose mission is consistent with Title VII's prohibitions against sexual harassment. Additional conditions precedent to Carrols' obligation to make certain individual payments shall apply as set forth in Exhibit B.
INJUNCTIONS
12. Carrols and its managers, supervisors, officers and agents are enjoined from harassment toward any of the Claimants or any other female because of her sex.
13. Carrols and its managers, supervisors, officers and agents also are enjoined from retaliating against any of the Claimants or any other female who has complained of sexual harassment, opposed discrimination, filed a charge of discrimination, or who gives testimony or assistance concerning the investigation or litigation of sexual harassment charges or lawsuits filed under Title VII.
POSTING AND NOTICES
14. Within thirty (30) days of entry of this Decree, Carrols will display the EEOC poster, a copy of which is attached as Exhibit C, at all its store locations where other notices to employees are regularly posted.
15. Within thirty (30) days of entry of this Decree, Carrols will display the Notice attached as Exhibit D at all store locations which were in existence on January 1, 2012, on a bulletin board where other notices to employees are regularly posted.
16. Within ninety (90) days of entry of this Decree, Carrols will display the Notice attached as Exhibit D at all store locations it acquired after January 1, 2012, on a bulletin board where other notices to employees are regularly posted.
TRAINING
17. Commencing within ten (10) days of entry of this Decree, Carrols will provide all new employees, within their first three (3) days at work, an E-learning training program that includes a module on recognizing, preventing, and eliminating sexual harassment in the workplace. This training program will be done on a computer at the work location provided by Carrols. The E-learning material will clearly make known that all employees have the right to work in an atmosphere which is free from sexual harassment, and that harassment in any form will not be tolerated. It also will include instruction on how to lodge a harassment complaint, including a list of personnel, by title and phone number, to whom such complaints may be addressed. In the event that a harassment complaint arising out of the employee's restaurant is substantiated, the employee and his or her co-workers will receive group re-training in these topics, such training to be provided in person by the Regional Human Resources Manager ("Regional HR Manager") or his or her designee within thirty (30) days of the conclusion of the investigation.
18. Within six (6) months of entry of this Decree, Carrols will revise its electronic record-keeping system so as to allow retrieval of lists of names and titles of employees and managers who have completed E-learning in a consolidated format by name and restaurant (hereinafter "roll-up").
19. Commencing within ten (10) days of entry of this Decree, Carrols will provide all Restaurant Managers, Assistant Managers, and Shift Supervisors, within four (4) weeks of hire or promotion, a unit of no fewer than two (2) hours of formal in-person training on Human Resources issues, including training on anti-discrimination, anti-harassment, and anti-retaliation laws. If trainers are not available during the four (4) week period, this unit will be provided as early as is reasonably practicable within the training program required for each of these managers and supervisors. The training sessions will be conducted by the Training Manager or the Regional HR Manager during the existing management certification program. This training unit will emphasize managerial employees' obligation not only to refrain from harassment of and retaliation against any employee, but to report any harassment that they observe or that is reported to them. Carrols will also incorporate into the training of shift supervisors and managers material addressing the special needs of teenaged workers with respect to preventing and remedying sexual harassment. The training further will inform managerial employees that their annual appraisal will include review of their performance in these areas, as referenced in paragraph 35 below, and will explain to them how they will evaluate, and be evaluated, on compliance with Carrols' policies. Written materials on these topics will be provided to all managerial employees.
20. Commencing within ten (10) days of entry of this Decree, all Regional Vice-Presidents, Regional HR Managers, District Supervisors, Restaurant Managers, Assistant Managers, and Shift Supervisors, within six (6) months of hire or promotion, also will attend an approximately five (5)-hour training course, "Shades of Harassment," unless they have already taken that course prior to promotion.
21. Commencing with the first annual supervisors conference ("Annual Supervisors' Conference") held after the date of entry of this Decree, at each Annual Supervisors' Conference all Regional Vice-Presidents, Regional HR Managers, and District Supervisors will attend a training module of at least one (1) hour concerning Carrols' policies and procedures and federal laws against harassment, discrimination, and retaliation, and on how to investigate complaints of sexual harassment.
22. Commencing with the first annual multi-day meeting for Regional HR Managers ("Annual Regional HR Managers' Meeting") held after the date of entry of this Decree, at each Annual Regional HR Managers' Meeting, all Regional HR Managers will attend a multi-day corporate-level seminar which will include training on laws against discrimination; managing a diverse workforce, including teenaged workers; how to investigate complaints of sexual harassment, consistent with the company's guidelines; and legal developments with respect to harassment. The training sessions will be conducted by Carrols' General Counsel. This training will include the use of videos and other written materials concerning sexual harassment, and tests to confirm managers' knowledge at the seminar's conclusion.
23. Commencing within sixty (60) days of entry of this Decree, Carrols will pay for Regional HR Managers' membership in SHRM and offer Regional HR Managers the opportunity to attend periodic HR seminars and programs.
24. Except for the roll-up to be implemented pursuant to Paragraph 18, supra, within thirty (30) days of entry of this Decree, Carrols will maintain records containing, but not limited to, the dates of the above trainings, names and titles of attendees, and agendas for the trainings. For the roll-up to be implemented pursuant to Paragraph 18, supra, Carrols will commence maintaining such records upon implementation.
ANTI DISCRIMINATION POLICIES
25. Commencing within ten (10) days of entry of this Decree, at the time Carrols provides the E-learning training described in Paragraph 17 above, Carrols will provide and review with all new employees a pamphlet entitled "Recognizing, Preventing and Eliminating Sexual Harassment" (a copy of which is attached hereto as Exhibit E), which includes a copy of Carrols' policy, "Preventing and Eliminating Sexual Harassment." That pamphlet has a tear-out form which states "the Carrols Corporation Sexual Harassment policy has been explained and reviewed with me and I understand its contents. I have received a copy of the Carrols Corporation Sexual Harassment Booklet." Managers will be instructed that it is their responsibility and obligation to secure a signed acknowledgment form from each new hire provided with these materials, and that their annual performance appraisals as referred to in Paragraph 35 below will include evaluation of their compliance with this responsibility and obligation. Within one week of completion, acknowledgement forms so obtained will be placed in employees' personnel files maintained at the restaurant of their employment and in personnel files maintained at the applicable regional office. The E-learning module, once the roll-up provided for in Paragraph 18, supra, is implemented, also will include a mechanism by which the employee acknowledges completing the training and receiving the pamphlet, records of which will thereafter be maintained electronically. Within ninety (90) days of entry of this Decree: (a) Carrols' anti-harassment policies and complaint reporting contact information will be made available on Carrols.com, with a hyperlink to Carrolsethics.com; and (b) Carrols' anti-harassment policies and complaint reporting contact information available on Carrols.com will be made available on Carrolsethics.com with an on-line reporting feature for employees to file complaints of sexual harassment, including anonymously. The anti-harassment policies and complaint reporting contact information also will be made available in Carrols restaurants in a three-ring binder near the bulletin board where all employee notices and policies are regularly displayed. Finally, Carrols will provide Restaurant Managers with additional copies of the policies and will inform employees of the policies' availability by notice in all of the locations described above.
26. Within one hundred and twenty (120) days of entry of this Decree, Carrols will delete any and all language in its policy, "Preventing and Reporting Sexual Harassment," and its PowerPoint training program, "Sexual Harassment Training," that references "false" and/or "malicious" harassment complaints or potential sanctions for such complaints. Carrols will not include the deleted language in any policies, procedures, or training relating to sexual harassment. Within one hundred and twenty (120) days of entry of this Decree, Carrols will delete any and all language in its pamphlet, "Recognizing, Preventing and Eliminating Sexual Harassment," its policy "Preventing and Reporting Sexual Harassment," and its E-learning training program indicating that non-supervisory employees are "obligated" or otherwise required to report all harassment, including any and all language indicating that employees are obligated to confront the harasser(s) before invoking Carrols' complaint procedure. Carrols will include in written materials and in training a statement that advises non-management employees that one of the steps they can take if harassed is to tell the harasser to stop and that sexual harassment should be reported promptly. Carrols will not include any of the deleted language in any policies, procedures, or training relating to sexual harassment.
27. Within ten (10) days of entry of this Decree, all Carrols policies on sexual harassment will also be available to all managers on the Carrols intranet for managers.
28. Within twenty (20) days after entry of this Decree, Carrols will offer all voluntarily departing hourly employees the opportunity to fill out a written exit interview form for submission to the Regional HR Manager. (See form attached as Exhibit F). Within 120 days after entry of this Decree, Carrols will offer all voluntarily departing managers the opportunity to fill out a written exit interview form for submission to the Regional HR Manager. Carrols will develop the manager written exit interview form within one hundred twenty (120) days of entry of this Decree, and will provide a draft to EEOC for review and approval. Completed interview forms will be transmitted to and maintained in electronic format on a website housed on Grapevine, in a password-protected database accessible by password protected format by Regional HR Managers, the Corporate Vice-President of Human Resources, the Corporate HR Manager and the Employee Benefits Specialist, within one week of receipt. The notice received by the departing employee will contain his or her unique password-protected log-in code by which he or she can access Grapevine for the purpose of responding to the interview form. These written exit interviews will specifically ask whether sexual harassment occurred at the restaurant where the employee worked, whether Carrols made the employee aware of how and to whom to report any kind of sexual harassment, and whether the employee ever complained of sexual harassment or participated in an investigation of a sexual harassment complaint. The exit interview also will afford an opportunity to provide a narrative response to these questions.
29. Within ten (10) days of entry of this Decree, Carrols' Vice President for Human Resources will receive immediate alerts when he or she receives negative responses to any of the sexual harassment-related exit interview questions. Carrols will investigate any complaint of sexual harassment uncovered in the course of an exit interview in accordance with its regular procedures for investigation of such complaints. Exit interviews including a complaint of sexual harassment will be shared with the appropriate District Supervisor(s) if the District Supervisor will be involved in the investigation of the complaint or if the complaint is determined to be substantiated; however, an exit interview will not be provided prior to investigation to a district supervisor who is the object of a complaint contained in it. Additionally, all responses to the exit interviews will be provided to the appropriate District Supervisors) on a semi-annual basis.
COMPLAINT HOTLINE AND DEDICATED EMAIL ADDRESS
30. Within ten (10) days of entry of this Decree, Carrols will maintain a toll free Hotline telephone number run by outside provider EthicsPoint and an email address (the "dedicated email address") for employees to file complaints of sexual harassment, including anonymously. The Hotline telephone number as of the entry of this decree is 1-800-511-8439; the dedicated email address as of the entry of this decree is www.carrolsethics.com. The Hotline number and the dedicated email address will be contained in the body of the Orientation Handbook, and contact information for the relevant Regional HR Manager and the Vice President for Human Resources at Corporate Headquarters also will be displayed on the inside cover of the Sexual Harassment Pamphlet and will also be included in the materials posted under the anti-harassment tab on Carrols.com and in the linked material on Carrolsethics.com, as provided for in Paragraph 25 above. This contact information, along with that for the relevant District Supervisor, will also be available at each store in the 3-ring binder containing a variety of policies that is accessible to all employees near the bulletin board where notices are normally posted. Carrols reserves the right, upon notice to employees and EEOC and upon consent by EEOC, such consent not to be unreasonably withheld, to change the Hotline telephone number, the outside provider of the hotline telephone service, and the dedicated email address, as long as reasonably equivalent or better service is provided.
31. Within ten (10) days of entry of this Decree, complaints of sexual harassment made through the Hotline or dedicated email, or made to the District Supervisor, the Vice President for Human Resources, or any manager at Carrols, will be referred to the relevant Regional HR Manager or his or her designee, or the designee of Corporate Human Resources, for prompt and thorough investigation. The relevant District Supervisor also will be informed that a complaint has been received, unless the District Supervisor is the object of the complaint or to do so would compromise Carrols' ability to investigate pursuant to its anti-discrimination policy. Carrols will maintain guidelines for investigation of complaints of sexual harassment complaints, including the importance of considering demeanor of complainants and witnesses and the existence of prior complaints, the maintenance of consistency in complaint resolution, and the importance and manner of informing complainants of investigation outcomes. These guidelines will be reviewed at the Annual Regional HR Managers' Meeting and the Annual Supervisor's Conference referenced in Paragraphs 21 and 22 above. Individuals filing complaints of harassment or interviewed in the course of the investigation will be compensated for their time and given the option to conduct interviews (1) by phone; (2) by interview at the restaurant; or (3) in a meeting outside of their work location if they indicate they do not want to meet at the restaurant.
32. Commencing within ten (10) days of entry of this Decree, any complaints of sexual harassment, whether made to Carrols or via EthicsPoint, and their status will be logged into a spreadsheet maintained by EthicsPoint within a week of the investigation's conclusion. Access to the spreadsheet will be limited to authorized Human Resources and in-house legal staff of Carrols or as may be required by Carrols' corporate governance policies or by law. The spreadsheet is attached as Exhibit G. Additionally, whenever a Regional HR Manager or designee begins investigation of a harassment complaint, he or she (a) will review the spreadsheets in order to learn whether the alleged harasser has been the subject of a prior complaint, and (b) will review the last three audits, as described in Paragraph 34, below, to learn whether the restaurant in question is in compliance with company policies.
33. Within ten (10) days of entry of this Decree, Carrols will maintain the physical records relating to harassment complaints, including investigation and conclusion, in a central location in each of its Regions within one week of an investigation's conclusion. A memorandum reflecting the outcome of the investigation on any claim found to have merit, will also be included in the accused harasser's personnel file maintained at the store location and shall be provided to the District Supervisor.
AUDITS
34. Commencing within fifteen (15) days of entry of this Decree, Carrols' Regional HR managers will conduct audits of HR practices in Carrols' restaurants as part of the biennial audit of each restaurant that exists at the time the Decree is entered, such that every restaurant is audited at least once by the conclusion of the term of this Decree, and will provide the results to outside counsel of record for Carrols. As part of the audits, the Regional HR Manager will conduct meetings with groups of no fewer than three (3) employees. The audit will include questions about whether any employee has been the victim of, or observed sexual harassment of another employee at their restaurant. Individuals interviewed in the course of the audit will be compensated for their time and given the option to conduct interviews (1) by phone; (2) by interview at the restaurant; or (3) in a meeting outside of their work location if they indicate they do not want to meet at the restaurant. The audit form is attached as Exhibit H. Carrols reserves the right, upon notice to EEOC and upon consent by EEOC, such consent not to be unreasonably withheld, to change the audit form. Employees not interviewed personally by the Regional HR Manager shall be provided the audit interview form to complete manually. Any complaint lodged in the course of the audit will be logged in the spreadsheet referenced in Paragraph 32 and investigated according to company policy.
MANAGER EVALUATION FORMS
35. Within ten (10) days of entry of this Decree, evaluation forms for all Restaurant Managers, Assistant Managers and District Supervisors will include a criterion of adherence to EEO policies of Carrols. In particular, the Checklist of Appraisal Characteristics for Managers form will include the following question: "To what extent does the individual take measures to prevent sexual harassment and discrimination and comply with federal, state and local employment law?" Reviewing managers will be requested to explain, in the comments portion of the review form, the basis for the rating assigned in this category. During the management training described above in Paragraph 19, managers will be informed in writing about the criteria for assessing this factor, including whether all required postings are displayed, whether all employees received a copy of the anti-harassment policy at the time of hire, whether the manager has been the subject of or failed to properly handle a sexual harassment complaint, the number of harassment complaints brought by employees in a given store, and feedback gathered from employees during the exit interviews and Regional HR Managers' audits or interviews concerning the overall store environment.
REPORTING AND MONITORING
36. Carrols will make available for inspection and copying any records reasonably related to the enforcement of this Decree, upon twenty (20) days written notice by EEOC, which notice will specify those records that EEOC seeks to inspect.
37. At the close of one hundred eighty (180) days following the entry of this Decree, and following every one hundred eighty (180) day period thereafter, Carrols will provide EEOC with a written summary narrative report on the status of its compliance with each of the paragraphs of this Decree. All materials required by this Decree to be sent to EEOC will be sent by first class mail addressed to Consent Decree Monitor, Equal Employment Opportunity Commission, New York District Office, 33 Whitehall St., 5th Floor, New York, New York 10004, or will be sent by email to Consent Decree Monitor at decreemonitornvdo@eeoc.gov.
DURATION OF DECREE AND RETENTION OF JURISDICTION
38. This Decree will remain in effect for two (2) years from the date of entry.
39. The Court retains jurisdiction over this action during the duration of this Decree solely for the purpose of providing relief according to the provisions of this Decree. The matter may be administratively closed but will not be dismissed during the duration of this Decree. Within thirty (30) days after the date set for the expiration of the Decree, the parties will submit a stipulation of dismissal to the Court.
_________________
Frederick J. Scullin, Jr.
Senior United States District Court Judge
APPROVED IN FORM AND CONTENT:
FOR PLAINTIFF EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION
_________________
ElizabethJGrossman
Regional Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
FOR DEFENDANT
CARROLS CORPORATION
_________________
Michael Delikat
John D. Giansello
ORRICK, HERRINGTON & SUTCLIFFE,
LLP
_________________
Jeffrey J. Mayer
FREEBORN & PETERS LLP