U.S. EEOC v. Wal-Mart Stores, Incorporated

Full title: U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. Wal-Mart…

Court: United States District Court, E.D. California

Date published: Apr 25, 2011

Case No.: 1:09-CV-00804-OWW-GSA (E.D. Cal. Apr. 25, 2011)

Opinion

Case No.: 1:09-CV-00804-OWW-GSA.

April 25, 2011

Anna Y. Park (SBN 164242), Michael J. Farrell (SBN 266533), Gregory L. McClinton (SBN 153553), Amrita Mallik (SBN 249152), U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Los Angeles, CA, Attorneys for Plaintiff, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

Mark R. Curiel, Esq. (SBN 222749), Donald R. Livingston (pro hac vice), AKIN GUMP STRAUSS HAUER FELD LLP, Los Angeles, California, Attorneys for Defendant SAM'S WEST, INC., DBA SAM'S CLUB.

CONSENT DECREE; ORDER

OLIVER WANGER, District JudgePage 2

I. INTRODUCTION

Plaintiff U.S. Equal Employment Opportunity Commission (the "EEOC" or "Commission") and Defendant Wal-Mart Stores, Inc. dba Sam's Club ("Defendant") agree to the entry of this Consent Decree to resolve the EEOC's Complaint, filed under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. section 2000e et seq. ("Title VII"). The EEOC's Complaint alleges that Evangelina Valdez, Martina Perez and Sofia Alvarez ("Charging Parties") and other similarly situated individuals ("Claimants") were subject to discrimination, specifically a hostile work environment by a co-worker due to their national origin (Hispanic/Latino).

II. PURPOSES OF THE CONSENT DECREE

The Parties to this Consent Decree ("Decree") are the EEOC and Defendant. This Decree shall be binding on and enforceable against Defendant and its officers, directors, agents, successors, and assigns. Defendant does not admit any violation of the law.

III. RELEASE OF CLAIMS

A. This Decree fully and completely resolves between Defendant and the EEOC all claims, including any and all claims of similarly-situated employees, and allegations that are raised by the EEOC against Defendant in the Complaint filed in the United States District Court, Eastern District of California on May 6, 2009, captioned U.S. Equal Employment Opportunity Commission v. Wal-Mart Stores, Incorporated dba Sam's Club, Case No. 1:09-CV-00804-OWW-GSA ("Complaint"). This Decree further fully and completely resolves between Defendant and the EEOC all claims, including any and all claims of similarlysituated employees, and allegations that are raised by the Charging Parties and Claimants against Defendant in the following Charges of Discrimination: No. 485-2009-00161; No. 485-2009-00250; No. 485-2009-00166; No. 485-2009-00170; No. 485-2009-00158; No. 485-2009-00162; and No. 485-2009-00403.

B. Nothing in this Decree shall be construed to preclude any party from bringing suit to enforce this Decree in the event that any party fails to perform the promises and representations contained in this Decree.

C. Nothing in this Decree shall be construed to limit or reduce Defendant's obligation to comply fully with Title VII or any other federal employment statute.

D. This Decree in no way affects the EEOC's right to bring, investigate or litigate other charges that may be in existence, except as provided in Section III.A, or may later arise against Defendant in accordance with standard EEOC procedures.

IV. EFFECTIVE DATE, DURATION, AND SCOPE OF DECREE

A. The provisions and agreements contained in this Decree are effective immediately upon the date this Decree is entered by the Court ("Effective Date").

B. Except where a shorter period is provided in this Decree, the Decree shall remain in effect for three (3) year after the Effective Date.

C. Except where this Decree is limited — with respect to training and reporting — to Sam's Club Number 4704, in Fresno, California, all other terms of this Consent Decree are limited to Sam's Club No. 4704, in Fresno and Sam's Club No. 4819, in Bakersfield, California.

V. MODIFICATION AND SEVERABILITY

A. This Decree constitutes the complete understanding of the Parties with respect to the matters contained in this Decree. No waiver, modification, or amendment of any provision of this Decree will be effective unless made in writing and signed by an authorized representative of each of the parties.

B. If one or more provisions of the Decree are rendered unlawful or unenforceable, the Parties shall make good faith efforts to agree upon appropriate amendments to this Decree to effectuate the purposes of the Decree. In any event, the remaining provisions will remain in full force and effect.

C. By written agreement of the Parties, this Decree may be amended or modified to effectuate the purposes of this Decree.

VI. JURISDICTION

A. The Court has jurisdiction over the Parties and the subject matter of this lawsuit. The terms and provisions of this Decree are fair, reasonable, and just. This Decree conforms to the Federal Rules of Civil Procedure and Title VII. It is not in derogation of the rights or privileges of any person.

B. The Court shall retain jurisdiction of this action during the duration of the Decree for the purposes of monitoring and entering all orders, judgments, and decrees that may be necessary to implement the relief provided in this Decree.

VII. COMPLIANCE AND DISPUTE RESOLUTION

A. The Parties agree that if the EEOC has reason to believe that Defendant has failed to comply with any provision of this Consent Decree, the EEOC may, while this Decree is in effect, petition or bring an action before this Court to enforce the Decree. Prior to initiating such petition or action, the EEOC will notify Defendant's legal counsel of record, in writing, of the nature of the dispute. This notice shall specify the particular provision(s) that the EEOC believes has or have been breached. Defendant shall have thirty (30) days from receipt of EEOC's notice of the alleged breach to attempt to resolve or cure the breach.

B. The Parties agree to cooperate with each other and use their reasonable efforts to resolve any dispute referenced in the EEOC notice.

C. After thirty days have passed with no resolution or agreement to extend the time further, the EEOC may petition or bring an action before this Court for compliance with this Decree.

VIII. MONETARY RELIEF

A. In settlement of all monetary claims in EEOC's Complaint, the Defendant shall pay a total of Four Hundred and Forty Thousand Dollars ($440,000). Allocation of settlement monetary amounts for each Charging Party and Claimant in this case shall be at the sole discretion of the EEOC.

B. The EEOC shall provide the Defendant: (1) a list identifying the individuals who are Charging Parties and Claimants, the amounts to be paid, and relevant identifying information, and current known address, (hereafter "Distribution List"), (2) fully executed tax forms and associate information sheets to be provided to the Claimants by Defendants. Within fourteen (14) business days of receipt of the Distribution List tax forms and information sheets, the Defendant shall send a check to each of the Charging Parties and Claimants via certified mail, return receipt requested.

C. Since the amount is designated as non-economic, non-wage compensatory damages stemming from allegations of unlawful harassment, no federal and state taxes shall be withheld. Defendant shall prepare and distribute Form 1099 or equivalent form(s) to Charging Parties and Claimants; and shall make the appropriate reports to the Internal Revenue Service and other tax authorities. Charging Parties and Claimants shall be solely responsible for taxes owed to any governmental authority as a result of payments made under this Decree.

D. Within ten (10) business days after all settlement checks have been sent to all Claimants, Defendant shall submit a copy of the checks or confirmation of payment and related correspondence to Anna Park, EEOC Regional Attorney at the office address on the caption page of this Decree.

IX. GENERAL AFFIRMATIVE RELIEF

A. Anti-Discrimination Provision

Defendant, its respective officers, agents, management (including all supervisory employees), successors, assigns, and all those in active concert or participation with them, or any of them, shall not:

1. Engage in discrimination or harassment of any person on the basis of his or her national origin;

2. Engage in or be a party to any action, policy, or practice that is intended or is known to them to have the effect of harassing or intimidating any employee on the basis of national origin; or

3. Create, facilitate or permit the existence of a work environment that is hostile to employees on the basis of national origin.

B. Anti-Retaliation Provision

Defendant, its respective officers, agents, management (including all managerial employees), successors, assigns, and all those in active concert or participation with them, or any of them, shall not engage in, implement or permit any action, policy, or practice with the purpose of retaliating against any current or former employee or applicant because he or she has in the course of this action:

1. Opposed any practice made unlawful under Title VII;

2. Filed a charge of discrimination alleging such practice;

3. Testified or participated in any manner in any investigation (including without limitation, any internal investigation undertaken by Defendant) or proceeding in connection with this case and/or relating to any claim against Defendant of national origin harassment or any subsequent retaliation;

4. Was identified as a possible witness or claimant in this action, or;

5. Sought and/or received relief in accordance with this Decree.

C. Posting of Notice of Consent Decree

Within ten (10) days after the Effective Date and for two years from the Effective Date of this Decree, Defendant shall post in English and Spanish a fullsized copy of the Notice of Consent Decree, attached to the Decree as Attachment A, in a clearly visible location frequented by employees (i.e. break rooms or bulletin boards with other employee notices) in Fresno Sam's Club Number 4704 and Bakersfield Sam's Club Number 4819.

D. Policy and Complaint Procedure for National Origin Discrimination, Harassment and Any Subsequent Retaliation

1. Within sixty (60) days of the Effective Date, Defendant shall review its policy against and complaint procedure for national origin discrimination, harassment, and any subsequent retaliation. If the following elements are not in the current policy, the policy shall be revised to include them:

a. a clear explanation of prohibited conduct: national origin discrimination, harassment, and any subsequent retaliation;

b. an assurance that employees who make complaints of national origin discrimination, harassment or provide information related to such complaints will be protected from retaliation;

c. a clearly described complaint process for national origin discrimination, harassment, and any subsequent retaliation that provides accessible avenues of complaint against co-workers, including the complainant's supervisors;

d. an assurance that Defendant will protect the confidentiality of discrimination complaints to the extent possible from being disclosed to those who do not need to know;

e. a complaint process that provides a prompt, thorough, and impartial investigation;

f. a procedure for communicating effectively with the complainant regarding the status of the complaint/investigation; and

g. assurance that Defendant will take prompt and appropriate corrective action when it determines that national origin discrimination, harassment or any subsequent retaliation has occurred.

2. At the training under IX.G.3, Defendant shall distribute its policy against and complaint procedure for national origin discrimination, harassment, and any subsequent retaliation to all of its employees. The policy shall be available in English and Spanish.

3. For the term of this Decree, all new employees hired at Fresno Sam's Club Number 4704 and Bakersfield Sam's Club Number 4819 shall receive within thirty (30) days of hire Defendant's policy against and complaint procedure for national origin discrimination, harassment and any subsequent retaliation, and shall be provided with an overview of the policy and procedures.

4. For the remainder of the term of this Decree, all employees promoted from non-managerial to managerial positions at Fresno Sam's Club Number 4704 or Bakersfield Sam's Club Number 4819 shall receive within thirty days of promotion any policies and procedures of Defendant's against and about national origin discrimination, harassment and any subsequent retaliation applicable to managerial employees; and shall be provided with an overview of the policy and procedures.

E. Procedure for Handling Complaints

Defendant shall have procedures for handling complaints of national origin discrimination, harassment and any subsequent retaliation made by Defendant's employees.

F. Manager/Supervisor Accountability

Defendant shall hold its managers, supervisors, and human resources personnel at Fresno Sam's Club Number 4704 and Bakersfield Sam's Club Number 4819 accountable for engaging in discrimination, or for failing to comply with Defendant's anti-discrimination and anti-retaliation policies and procedures.

G. Training

1. Within sixty (60) days of the Effective Date, the Defendant shall review and, if necessary to comport with Section G.2 below, revise its training of its policy against and complaint procedure for national origin discrimination, harassment and any subsequent retaliation.

2. Within 90 days after the Effective Date, the Defendant shall provide training of at least 2 hours in duration for its managerial and human resources employees at Fresno Sam's Club Number 4704 and Bakersfield Sam's Club Number 4819, and the Market Manager and Human Resources Manager over those Clubs. This training shall be in Spanish for an employee who is monolingual and whose language is Spanish. The training shall cover EEO laws, including but not limited to national origin discrimination and harassment. The training shall also encompass retaliation. The training shall also cover Defendants' policy against discrimination, the complaint procedures and policies. The training of managerial employees shall additionally include training on how to receive, investigate, or report to designated officials complaints of national origin discrimination, harassment and any subsequent retaliation; and how to take preventive and corrective measures against national origin discrimination, harassment and any subsequent retaliation.

3. A separate training of at least 60 minutes in duration shall be provided for non-managerial employees in the Fresno Club covering EEO laws, including by not limited to national origin discrimination and harassment. The training shall also encompass retaliation. The training shall also cover Defendants' policy against discrimination, complaint procedures and policies. This training shall be in Spanish for an employee who is monolingual and whose language is Spanish.

4. The former manager of Sam's Club 4704 during the relevant period in the aforementioned charges in Paragraph III.A shall be given the training designated for managers described above in G(2).

5. After the initial trainings described in paragraphs 2 and 3 of this section, Defendant shall conduct annual training (every twelve (12) months thereafter for the term of this Decree) on EEO laws, obligations of managers and supervisors on EEO compliance, its policy against and complaint procedure for national origin discrimination, harassment and any subsequent retaliation for the same audiences in Paragraphs 2 and 3 of this Section.

6. For any employees who miss the scheduled training described in this section, the Defendant shall provide training to these employees within thirty (30) days of the scheduled training. This rescheduled training may be live or by use of a videotape recording of the missed training session.

H. Employment Reference

Defendant shall give a neutral reference, through its third party vendor, for Charging Parties and Claimants upon inquiry by any prospective employers, which may include the following information: date of hire, last position held, date of departure and last pay rate. Defendant will not provide further information regarding the circumstances of the Charging Party or Claimant's employment.

X. RECORD KEEPING AND REPORTING

A. Record Keeping

The Defendant shall establish a record-keeping procedure for Fresno Club Number 4704 that provides for the centralized tracking of complaints about national origin discrimination, harassment and any subsequent retaliation. The records to be maintained shall include:

1. All documents generated in connection with any internal complaint, investigation into, or resolution of regarding national origin discrimination, harassment and any subsequent retaliation for the duration of the Decree and the identities of the parties involved; and,

2. A form or electronic record acknowledging each employee's receipt of Defendant's policy against and complaint procedure against discrimination.

3. The Defendant shall provide to the Commission upon request all non-privileged documents generated in connection with any such discrimination, harassment, and retaliation complaints, investigations, and resolutions. The Commission shall give Defendant 30 days notice of any request for documents pursuant to this paragraph.

B. Reporting

The Defendant shall provide the following reports to the Commission in writing, by mail, or by facsimile:

1. Within 120 days after the Effective Date and annually thereafter (with the last reporting one month before the end of the Consent Decree) for the term of the Decree, the Defendant shall submit to the Commission the following:

a. verification that the Notice of Consent Decree (Attachment A) has been posted in compliance with the Consent Decree;

b. its policy against and complaint procedure for national origin discrimination, harassment and any subsequent retaliation;

c. verification of the distribution to Defendant's employees of its policy against and complaint procedure for national origin discrimination, harassment and retaliation in compliance with the Consent Decree;

d. for all training conducted under Section IX.G, a copy of Defendant's training materials, schedule of training, dates of training and a roster of attendees by name and position;

e. verification that all applicable managerial and non-managerial employees have been trained in compliance with the Consent Decree;

g. verification that a record keeping system exists for (1) the tracking of national origin discrimination, harassment complaints at Club 4704, (2) the employees' acknowledgment of the receipt of Defendant's policy and complaint procedure for national origin discrimination, harassment and retaliation in compliance with the Consent Decree, and (3) the attendance/completion of all of its employees in training concerning its policy and complaint on national origin discrimination, harassment and retaliation in compliance with the Consent Decree;

h. a summary report of its investigation into any complaint about national origin discrimination, national origin harassment and/or retaliation for complaining about national origin discrimination, and/or harassment in the Fresno Club. The summary report shall include the following for each complaint during the reporting period:

(1). the name and national origin, if known, of the complaining party(ies);

(2). the date of the complaint;

(3). the name and national origin/race, if known, of the alleged harasser(s);

(4). the name, national origin/race and title of the person(s) who conducted the investigation into the complaint;

(5). the nature of the complaint (i.e. comments, acts, pictures, etc.)

(6). the date of the commencement and completion of the investigation;

(7). a brief description of the investigation (i.e. number of persons interviewed, materials reviewed);

(8). the outcome of the investigation and any action taken; and.

(9). whether previous national origin and/or discrimination, harassment complaints had been made regarding the alleged harasser(s). If so, the report should also include the outcome of the prior investigations.

2. All reports under this Paragraph shall be directed to: U.S. Equal Employment Opportunity Commission, Attn. Regional Attorney, 255 E. Temple Street, 4th Floor, Los Angeles, CA 90012.

XI. COSTS OF ADMINISTRATION AND IMPLEMENTATION OF THE CONSENT DECREE

Defendant shall bear all costs associated with its administration and implementation of its obligations under this Decree.

XII. COSTS AND ATTORNEYS' FEES

Each party shall bear its own costs of suit and attorneys' fees.

ORDER

GOOD CAUSE APPEARING,

The provisions of the foregoing Consent Decree are hereby approved and compliance with all provisions thereof is HEREBY ORDERED.

IT IS SO ORDERED.