EEOC v. ABM Janitorial Services, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Doc. 287 Anna Y. Park, CA SBN 164242 Elizabeth Esparza-Cervantes, CA SBN 214158 Lorena Garcia-Bautista, CA SBN 234091 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 255 East Temple Street, 4th Floor Los Angeles, CA 90012 Telephone: (213) 894-1068 Facsimile: (213) 894-1301 lado.legal@eeoc.gov Attorneys for Plaintiff UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Keith Jacoby, CA SBN 150233 Laura Hayward, CA SBN 204014 Matthew E. Farmer, CA SBN 190484 LITTLER MENDELSON 650 California St., 20th Floor San Francisco, CA 94108-2693 Telephone: (415) 433-1940 Facsimile: (415) 399-8490 Attorneys for Defendants ABM INDUSTRIES, INC., et al. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, ERIKA MORALES and ANONYMOUS PLAINTIFFS ONE TROUGH EIGHT, v. ABM INDUSTRIES INC., ABM JANITORIAL SERVICES, INC.; ABM JANITORIAL NORTHERN CALIFORNIA; JOSE VASQUEZ; Does 1-10 inclusive, Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:07 CV 01428 LJO-JLT Amended Consent Decree; Order The Honorable Lawrence J. O’Neill U.S. District Court Judge 28 Dockets.Justia.com 1 2 I. INTRODUCTION Plaintiff U.S. Equal Employment Opportunity Commission (the “EEOC” or 3 “Commission”)and Defendants ABM Industries Incorporated, ABM Janitorial 4 Services, Inc., ABM Janitorial Services Northern-California (“Employer”); (all 5 defendants are hereinafter collectively referred to as “Defendants” or “ABM”) 6 hereby stipulate and agree to entry of this Consent Decree to resolve the 7 Commission’s First Amended Complaint, filed under Title VII of the Civil Rights 8 Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), alleging that 9 charging parties Erika Morales, Delia DeMejia, and nineteen other women 10 designated as class members in this case by the EEOC (collectively known herein 11 as “Claimants”) were subjected to unlawful employment practices on the basis of 12 sex, female, in violation of Section 706 (f)(1) and 3 and Section 707(f)(1) of Title 13 VII. Nothing in this Decree shall construe or be construed to obligate any 14 subsidiary of ABM Industries Incorporated not named as a defendant in this action. 15 16 II. A. PURPOSES AND SCOPE OF THE CONSENT DECREE In the interest of resolving this matter, the Commission and 17 Defendants (hereinafter sometimes collectively referred to as “the Parties”) have 18 agreed that this action should be finally resolved by entry of this Consent Decree 19 (“Decree”). This Decree shall be binding on and enforceable against Defendants 20 and their officers, directors, agents, successors and assigns. The Parties have 21 entered into this Decree for the following purposes: 22 1. To provide appropriate monetary and injunctive relief; 23 2. To ensure that Defendants’ employment practices comply with 24 federal law; 25 3. 26 retaliation; 27 4. 28 To create a work environment free from hostility and To provide training for Employer’s managers, supervisors, and 2 [PROPOSED] CONSENT DECREE; ORDER 1 employees with respect to their obligations under Title VII; and 2 5. 3 receiving and handling Employer’s sexual harassment and retaliation 4 complaints in the workplace. 5 B. To develop an appropriate and effective mechanism for In entering into this Consent Decree, Defendants deny that they or 6 anyone acting on their behalf engaged in actionable conduct. This Decree and 7 compliance with this Decree shall not be construed as an admission of liability by 8 Defendants, or as an admission by Defendants of any violation of rights of the 9 Claimants or of any other person’s allegation of harasment. To the extent that 10 some of the Claimants intervened as plaintiffs in this action, they have entered into 11 a separate agreement to which the EEOC is not a party. This Decree is not 12 contingent upon said separate agreement. 13 14 III. A. RELEASE OF CLAIMS The Parties agree that this Decree resolves EEOC’s First Amended 15 Complaint filed in this action in the United States District Court, Eastern District 16 of California on July 17, 2009, captioned U.S. Equal Employment Opportunity 17 Commission, Erika Morales, and Anonymous Plaintiffs One Through Eight vs. 18 ABM Industries Incorporated; ABM Janitorial Services, Inc.; and ABM Janitorial 19 Services-Northern California; Case No. 1:07 CV01428-LJO-BAK (GSA) 20 (hereafter “the Action”). The Parties further agree that this Decree constitutes a 21 complete resolution of all EEOC claims of sexual harassment under Title VII made 22 in this Action. 23 B. Nothing in this Decree shall be construed to limit or reduce 24 Defendants’ obligation to comply fully with Title VII or any other federal 25 employment statute. 26 27 28 C. Nothing in this Decree shall be construed to preclude the EEOC from bringing suit to enforce this Decree in the event that any party hereto fails to 3 [PROPOSED] CONSENT DECREE; ORDER 1 2 perform the promises and representations contained herein. D. This Decree in no way affects the EEOC’s right to bring, process, 3 investigate or litigate other charges that may be in existence or may later arise 4 against Defendants other than the charges specifically identified in this Release of 5 Claims section. As of the date that the parties executed this Decree, the Claimants 6 do not have any open charges of harassment related to the allegations raised by the 7 Claimants in this action against Defendants. 8 9 IV. A. JURISDICTION The Court has jurisdiction over the parties and the subject matter of 10 this action. The First Amended Complaint asserts claims that, if proven, would 11 authorize the Court to grant the relief set forth in this Decree. The terms and 12 provisions of this Decree are fair, reasonable, and just. This Decree conforms to 13 the Federal Rules of Civil Procedure and Title VII and is not in derogation of the 14 rights or privileges of any person. The entry of this Decree will further the 15 objectives of Title VII and will be in the best interest of the Parties. 16 B. The Court shall retain jurisdiction of this action during the duration of 17 the Decree for the purposes of entering all orders, judgments, and decrees that may 18 be necessary to implement the relief provided herein. 19 20 V. A. EFFECTIVE DATE AND DURATION OF DECREE The provisions and agreements contained herein are effective 21 immediately upon the date which this Decree is entered by the Court (“the 22 Effective Date”). 23 B. Except as otherwise provided herein, this Decree shall remain in 24 effect for three (3) years after the Effective Date, provided that Defendants have 25 substantially complied with the terms of this Decree. In the event that Defendants 26 have not substantially complied, the duration of this Decree may be extended by 27 Court order in order to effectuate its purposes. 28 4 [PROPOSED] CONSENT DECREE; ORDER 1 2 VI. A. DECREE ENFORCEMENT If the Commission has reason to believe that Defendants have 3 breached this Decree, the Commission may bring an action before this Court to 4 enforce the Decree. Prior to initiating such action, the Commission will notify 5 Defendants and their legal counsel of record, in writing, of the nature of the 6 dispute. This notice shall specify the particular provision(s) that the Commission 7 believes Defendants have breached. Absent a showing by either party that the 8 delay will cause irreparable harm, Defendants shall have forty-five (45) days from 9 the date of notice (“Dispute Resolution Period”) to attempt to resolve or cure the 10 11 12 13 breach. B. The Parties agree to cooperate with each other and use their best efforts to resolve any dispute referenced in the EEOC notice. C. After the expiration of the Dispute Resolution Period, the 14 Commission may initiate an enforcement action in this Court, seeking all available 15 relief, including an extension of the duration of the Decree for such time as the 16 Defendants are shown to be in breach of the Decree. 17 D. The Commission may petition this Court for compliance with this 18 Decree at any time during which this Court maintains jurisdiction over this action. 19 Should the Court determine what the Defendants have not complied with this 20 Decree, in whole or in part, it may impose appropriate relief, including an 21 extension of the duration of this decree, the imposition of Commission’s costs and 22 attorneys’ fees incurred in securing compliance with the Decree, and other relief 23 the court deems appropriate. 24 25 VII. MODIFICATION AND SEVERABILITY A. This Decree constitutes the complete understanding of the Parties with 26 respect to the matters contained herein. No waiver, modification, or amendment of 27 any provision of this Decree will be effective unless made in writing and signed by 28 5 [PROPOSED] CONSENT DECREE; ORDER 1 2 an authorized representative of each of the Parties. B. If one or more provisions of the Decree are rendered unlawful or 3 unenforceable, the parties shall make good faith efforts to agree upon appropriate 4 amendments to this Decree in order to effectuate the purposes of the Decree. If the 5 Parties are unable to reach agreement, the Court shall order appropriate alternative 6 provisions in order to effectuate the purposes of the Decree. Should one or more 7 provisions of this Decree be deemed unlawful, all other lawful and enforceable 8 provisions will remain in full force and effect. 9 10 VIII. MONETARY RELIEF A. Defendants agree to pay a total of Five Million, Eight Hundred 11 Thousand Dollars ($5,800,000.00) in full resolution of this Action to be distributed 12 amongst twenty-one women that the EEOC has identified as Claimants to the 13 EEOC’s suit, some of whom separately intervened. The distribution to the 14 Claimants shall be at the sole discretion of the EEOC and is not subject to review. 15 The EEOC shall provide Defendants with a list of the name and address to which 16 the Claimants monetary relief should be delivered (hereafter “Distribution List”). 17 Where indicated in the EEOC’s Distribution List as monetary relief being 18 delivered to Claimants represented by Intervenors’ counsel, Defendants shall remit 19 said amounts to the third Party administrator, in accordance with the Settlement 20 Agreement executed by Defendants and Plaintiff-Interveners. . 21 B. Defendants shall forward, via certified mail, a check to each 22 individual identified by EEOC pursuant to Section VIII.A above within ten (10) 23 business days of their receipt of EEOC’s Distribution List and a signed W-9 Form. 24 The EEOC has designated the monies to be paid to the Claimants as non-wage 25 compensation under Title VII and no tax withholding shall be made. Defendants 26 shall make appropriate reports to the Internal Revenue Service and other tax 27 authorities. Defendants shall be solely responsible for any costs associated with 28 6 [PROPOSED] CONSENT DECREE; ORDER 1 the issuance and distribution of the 1099 tax reporting forms to each of the 2 Claimants. Claimants shall be solely responsible for taxes payable, if any, on their 3 respective portion of settlement proceeds. The tax handling and reporting of the 4 monies paid to Plaintiff-Intervenors is set out in that separate Settlement 5 Agrement. Nothing in this Decree constitutes tax advice nor meant to replace each 6 Claimant’s responsiblity to consult a tax expert with any relevant tax questions. 7 In some instance, the EEOC has designated that some claimants have claims 8 that have resulted in personal injury. Those individuals shall be identified in the 9 Distribution List accordingly. EEOC did not seek wage loss damages in settlement 10 of this Action. 11 C. Within three (3) business days of the issuance of each and every 12 settlement check, Defendants shall submit a copy of each check and related 13 correspondence to the Regional Attorney, Anna Y. Park, U.S. Equal Employment 14 Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, CA 15 90012. Within five (5) business days of the issuance of each and every 1099 Form 16 to the Claimants, Defendants shall submit a copy of each 1099 Form and related 17 correspondence to the Regional Attorney, Anna Y. Park, U.S. Equal Employment 18 Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, CA 19 90012. 20 21 22 23 IX. CLAIMANT SPECIFIC INJUNCTIVE RELIEF Within ten (10) days of the Effective Date of this Decree, ABM Industries Incorporated and/or the Employer as applicable shall: A. remove from the personnel files of each identified Claimant’s and, to 24 the extent applicable, their supervisors, all negative complaints, reports, criticisms, 25 and any other documents reflecting negatively on her job performance issued or 26 recommended by the Claimant’s accused harasser for the suit’s relevant time 27 period from 2000 to the present or references to the charges of discrimination filed 28 7 [PROPOSED] CONSENT DECREE; ORDER 1 2 against Defendants or their participation in this action; B. to the extent that ABM Industries Incorporated and/or the Employer 3 must keep records of the charges of discrimination or each Claimants involvement 4 in the Action in order to effectuate this Decree, maintain said records separately 5 and segregated from Claimants’ personnel files; 6 C. refrain from providing negative references and limit employment 7 reference inquiries related to Claimants to verifying whether the identified 8 Claimant was employed by the Employer and the time period of such employment; 9 10 11 D. to the extent they continue to work for Defendants, ensure that they are monitored against harassment and retaliation; and E. 12 Change any termination of the Claimants to voluntary resignations. X. DESIGNATION OF A MONITOR 13 A. 14 Within thirty days (30) after the Effective Date, ABM shall retain an outside Equal Employment Opportunity Monitor 15 Equal Employment Opportunity Monitor(“Monitor”) of the EEOC and 16 Defendants’ choosing with demonstrated experience in the area of employment 17 discrimination and sexual harassment issues, to implement and monitor 18 compliance with Title VII and the provisions of this Decree. The parties have 19 agreed that the designated Monitor shall be Michael Robbins from EXTTI, 20 Incorporated. In the event that Michael Robbins of EXTTI, Incorporated is no 21 longer able to perform his services as Monitor in this matter, the Commission shall 22 provide ABM with a list of at least three suggested successor monitor candidates 23 acceptable to the Commission. If the parties can not agree to a successor monitor 24 from the EEOC’s list, the parties will be required to file a joint motion for 25 appointment of a monitor with both sides suggesting candidates and providing 26 background information for the Court to select the Monitor. The Employer shall 27 bear all reasonable costs associated with the selection and retention of the Monitor 28 8 [PROPOSED] CONSENT DECREE; ORDER 1 and the performance of his/her duties. The Monitor shall assist in the following: 2 1. 3 procedures to handle complaints under Title VII of harassment and 4 retaliation; 5 2. 6 distributing any revised version of the anti- harassment policy and 7 reporting procedure; 8 3. 9 employees to ensure a workplace free of harassment and retaliation; 10 Developing or, if deemed necessary by the Monitor, revising If deemed necessary by the Monitor, revising, and re- Review ABM’s training materials and assist ABM training its a. The Monitor shall work with Defendants to develop an 11 appropriate and effective method of providing Employer’s employees 12 with anti-harassment and retaliation training to Employer’s hourly 13 employees, to include training on ABM Inc.’s policies and procedures 14 relating to sex harassment and retaliation. 15 4. 16 involved in overseeing or addressing Employer’s employees’ sex 17 harassment complaints on their rights and responsibilities under Title 18 VII, including but not limited to the responsibilities to provide a 19 workplace free of harassment and retaliation; 20 5. 21 exist to hold employees and managers accountable for failing to take 22 appropriate action and/or for engaging in conduct prohibited under 23 this Decree; 24 6. 25 tracking, harassment, and retaliation complaints; 26 7. 27 this lawsuit and who continue to be employed by the Employer to 28 Assist or ensure proper training of ABM employees who are Ensure that appropriate and consistent disciplinary policies Ensuring the maintenance of an effective centralized system of Monitoring class members and witnesses who participated in 9 [PROPOSED] CONSENT DECREE; ORDER 1 ensure that they have not been subjected to any retaliation or 2 harassment. The Monitor shall contact these individuals at least every 3 three (3) months; 4 8. 5 Employer’s employees, managers, supervisors, and leads are held 6 accountable and to implement Defendants’ zero tolerance policy with 7 respect to harassment and retaliation; and 8 9. 9 10 11 12 Ensuring that audits are conducted properly to ensure that Further ensuring compliance with the terms of this Decree. XI. A. GENERAL INJUNCTIVE RELIEF Non-Discrimination 1. Discrimination Based on Sex Defendants, their officers, agents, management (including all supervisory 13 employees), successors, assigns, and all those in active concert or participation 14 with them, or any of them, hereby agree not to: (a) discriminate against persons on 15 the basis of sex in the terms and conditions of employment; (b) engage in or be a 16 party to any action, policy or practice that is intended or is known to them to have 17 the effect of harassing or intimidating any employee on the basis of sex; and (c) 18 create, facilitate or permit the existence of a work environment that is hostile to 19 female employees. 20 21 2. Retaliation Defendants, their officers, agents, management (including all supervisory 22 employees), successors, assigns, and all those in active concert or participation 23 with them, or any of them, hereby agree not to engage in, implement or permit any 24 action, policy or practice with the purpose of retaliating against any current or 25 former employee or applicant of Defendants, or either of them, because he or she 26 has in the past, or during the term of this Decree: (a) opposed any practice made 27 unlawful under Title VII; (b) filed a charge of discrimination alleging such 28 10 [PROPOSED] CONSENT DECREE; ORDER 1 practice; (c) testified or participated in any manner in any investigation (including 2 without limitation, any internal investigation undertaken by any of the 3 Defendants), proceeding in connection with this case and/or relating to any claim 4 of a Title VII violation; (d) was identified as a possible witness or claimant in this 5 action; (e) asserted any rights under this Decree; or (f) sought and/or received any 6 relief in accordance with this Decree. 7 B. 8 Within ten (10) business days after the Effective Date and throughout the 9 Posting term of this Decree, the Employer shall post a notice (attached as “Exhibit A”) of 10 the terms of this Decree, in English and in Spanish, in a clearly visible place at 11 Employer’s locations frequented by its employees where permitted by owner(s) of 12 facilities where ABM provides janitorial services. The notice shall be posted in 13 English and Spanish, and remain posted for the duration of this Decree. In the 14 alternative, Defendants can disseminate the posting to each of Defendant’s 15 employees within sixty (60) days of the effective date on an annual basis for the 16 term of the Decree. 17 XII. SPECIFIC INJUNCTIVE RELIEF REMEDIES 18 A. 19 The Vice-President of Human Resources for ABM Janitorial Services, Inc., OVERSIGHT AND MONITORING 20 currently Amado Hernandez, shall oversee and ensure that at all times Employer 21 has access to an adequate number of trained investigators which shall include at 22 least 2 additional investigators, totaling no less than eight investigators. At least 23 half of the investigators shall be bilingual in their ability to speak English and 24 Spanish. The investigators shall be experienced and trained in conducting 25 harassment and retaliation investigations. The investigators shall conduct 26 investigations into allegations of harassment or retaliation promptly. The Vice- 27 President will ensure that immediate corrective and preventative measures are 28 11 [PROPOSED] CONSENT DECREE; ORDER 1 2 taken. Investigators who conduct investigations into allegations of sex harassment 3 or retaliation made by employees of Employer shall be thoroughly trained 4 regarding ABM’s policies and procedures regarding EEO laws, with an emphasis 5 on conducting harassment and retaliation complaints. The investigators must be 6 qualified to properly investigate complaints of harassment and retaliation under 7 EEO laws. The Monitor shall review the qualifications of the investigators to 8 ensure a baseline level of experience during the term of the Decree. 9 B. 10 11 MANDATORY DUTIES OF THE OFFICE OF THE VICE PRESIDENT OF HUMAN RESOURCES At all times, the Vice-President’s Office and ABM Industries, Inc. where 12 applicable shall ensure the implementation and compliance with the provisions of 13 this Decree and compliance with EEO laws as follows: 14 a. Create, monitor, and ensure the implementation of effective policies 15 and procedures that are centrally monitored to ensure continuity and prompt and 16 effective action; 17 18 19 20 21 22 23 b. Ensure proper systems are in place to make certain that proper avenues exist for employees to complain; c. Promptly investigate claims of sexual harassment and retalation required under Title VII; d. Ensure immediate, corrective, and preventative measures after conducting a thorough investigation e. Conduct periodic audits as set forth herein to ensure Employer’s 24 employees are held accountable and to reinforce the Defendants’zero tolerance 25 policy for harassment and retaliation; 26 27 28 f. Oversee the development and implementation of all training and education programs to be provided under the Decree: 12 [PROPOSED] CONSENT DECREE; ORDER 1 g. Enforce all policies to foster a workplace free of sexual harassment, 2 and retaliation. This includes taking measures to ensure that no retaliation is taken 3 against persons engaging in protected activity by monitoring the matter as directed 4 by the Monitor; and 5 6 7 h. Ensure that all reports required by this Decree are accurately compiled and timely submitted; i. Create appropriate and consistent disciplinary policies to hold 8 employees and managers accountable for failing to take appropriate action and/or 9 for engaging in conduct prohibited under this Decree; 10 11 j. Create a centralized system of tracking, harassment, and retaliation complaints; 12 C. 13 Pursuant to this Decree, ABM has submitted to the EEOC and to the 14 Monitor, who has already been agreed upon by the parties, ABM’s 2009 revised 15 Policy Against Workplace Harassment and CEO Video Message. The Monitor will 16 be consulted prior to implementing any changes to this policy during the pendency 17 of the Decree. At all times, the sexual harassment policy or other written practices 18 shall, at a minimum, include the following: POLICIES AND PROCEDURES 19 1. 20 harassment and retaliation; 21 2. 22 both quid pro quo and hostile work environment, including examples; 23 3. 24 believe that they have been harassed or retaliated against for 25 complaining about discrimination; 26 4. 27 termination that will be imposed upon violation of the policy against 28 A strong and clear commitment to a workplace free of sexual A clear and comprehensive description of “sexual harassment” A statement encouraging employees to come forward if they A description of the possible consequences up to and including 13 [PROPOSED] CONSENT DECREE; ORDER 1 sexual harassment and retaliation; 2 5. 3 confidentiality for persons who bring complaints about sexual 4 harassment or retaliation; 5 6. 6 harassment they experienced or witnessed or that persons who provide 7 information related to such complaints will not be subject to 8 retaliation; 9 7. A statement of commitment to maximally feasible An assurance that persons who complain about sexual A statement that the sexual harassment policy applies to all 10 persons, including management officials, supervisors, vendors, 11 suppliers, third parties, and customers; 12 8. 13 and confidential avenues of complaint with the contact information 14 including name (if applicable), address, and telephone number of 15 persons both internal (i.e., human resources department and Hotline, 16 managers) and external to Defendants (i.e., EEOC) to whom 17 employees may report Title VII harassment and retaliation, including 18 a written statement that the employee may report the discriminatory 19 behavior to designated persons outside of their chain of management; 20 9. 21 sexual conduct and/or sexual jokes while at work. 22 10. 23 impartial investigation; 24 11. 25 writing regarding the status of the complaint/investigation, results of 26 the investigation, and any remedial action taken; 27 12. 28 A clearly described complaint process that provides accessible A statement that employees are not to engage in or discuss A complaint process that provides a prompt, thorough, and A procedure for communicating with the complainant in Assurance that bilingual staff in Spanish and English are 14 [PROPOSED] CONSENT DECREE; ORDER 1 available for receiving complaints; 2 13. 3 be taken after a determination that harassment/ and/or retaliation has 4 occurred; and 5 14. 6 managers accountable for failing to take appropriate action or for 7 engaging in conduct prohibited under this Decree. 8 9 Assurance that immediate and appropriate corrective action will Assurance that disciplinary policies hold employees and This policy shall promptly be distributed in English and Spanish to all of Employer’s employees (including management/supervisory staff and hourly 10 employees), and shall be included in any relevant policy or employee manuals 11 distributed to employees. The Employer shall collect written or electronic 12 acknowledgments from each employee who receives the policy in either English or 13 Spanish, depending on the language preference of each employee. Employees 14 needing the policy in Spanish, shall solely sign the acknowledgement page that is 15 in Spanish. This policy shall be disseminated on a semi-annual basis for the term 16 of the Decree. 17 All employees will be given a copy of the policy with their 18 acknowledgement signature in a language appropriate to their language needs. 19 Throughout the term of this Decree, ABM and the Employer shall make accessible 20 and post the policy, in English and Spanish, in a legible font, at all of Employer’s 21 offices and locations where feasible and permitted by owner(s) of facilities where 22 ABM provides janitorial services. 23 ABM has submitted the 2009 sex harassment and retaliation policies for the 24 EEOC’s review. 25 D. 26 Within sixty (60) days of the Effective Date of this Decree, Defendants shall 27 28 Establishment of Harassment/ Retaliation Hotline establish, or, if existing, certify existence of a sexual harassment/ retaliation 15 [PROPOSED] CONSENT DECREE; ORDER 1 Hotline in both English and Spanish, which number shall be published in the 2 sexual harassment policy and the posting. The Hotline shall be in operation seven 3 days per week, 24 hours per day. ABM will ensure that all employees, irrespective 4 of remoteness of work location and language needs, are advised of the harassment 5 hotline. Any acknowledgement forms signed by employees regarding the 6 existence of said hotline, shall be signed on the page containing the policy in the 7 language that the employee understands. 8 9 Defendants with the Monitor shall ensure that a mechanism by which all hotline inquiries and response time are tracked for response timeliness exists. 10 Similarly, Defendants and Monitor will ensure policies and procedures exist so that 11 all complaints are timely addressed and investigated. 12 E. 13 Within sixty (60) days of the Effective Date, ABM shall certify that it has COMPLAINT PROCEDURE 14 publicized an internal complaint procedure to provide for the filing, investigation 15 and, if appropriate, remedying of complaints of sex harassment or retaliation. 16 ABM shall establish a toll-free number that shall be disseminated to all ABM 17 employees informing them that a complaint can be logged at any time. The (800) 18 number reports shall be processed by ABM Industries, Incorporated’s Human 19 Resources department and it shall monitor the effectiveness of the process. The 20 Monitor shall review the monitoring efforts to ensure prompt, immediate, and 21 effective response. The Monitor shall also ensure that ABM Industries 22 Incorporated publicizes the complaint procedure and monitor the investigation 23 and resolution of such complaints. 24 The Employer shall also publicize the EEOC complaint line number of (800) 25 669-4000. 26 /// 27 /// 28 16 [PROPOSED] CONSENT DECREE; ORDER 1 F. 2 INCORPORATE THE FOLLOWING ELEMENTS: 3 1. A policy describing how investigations will be conducted; 4 2. A prompt commencement and thorough investigation by an ABM THE INTERNAL COMPLAINT PROCEDURE SHALL 5 employee or hired professional trained to conduct such investigations who is not 6 connected with the complaint; 7 3. A statement that an investigation should include interviews of all 8 relevant witnesses, including the complainant, and reviews of all relevant 9 documents; 10 11 4. A written record of all investigatory steps, and any findings and conclusions, and any actions taken; 12 5. Provision for the reasonably prompt resolution of such complaints; 13 6. An opportunity for a the complainant to review and respond to 14 tentative findings, except in those circumstances in which it is necessary to take 15 immediate action; 16 7. 17 possible; 18 8. 19 20 21 22 Confidentiality of the complaint and investigation to the extent Appropriate communication of the final conclusions of the investigation provided to the complainant; 9. An appeal procedure to an appropriate ABM representative, should the complainant be dissatisfied with the results of the investigation; and 10. In conjunction with the dissemination of this Decree, Employer shall 23 send a notice that employees complaining of harassment may use the internal 24 complaint procedure and contact information for the EEOC. The notice shall also 25 state that filing an internal complaint does not relieve the complainant of meeting 26 any applicable deadline for the filing of a charge or complaint with EEOC. 27 11. The parties acknowledge that employees in Employer’s Central 28 17 [PROPOSED] CONSENT DECREE; ORDER 1 California branches are not unionized but other employees of Employer are 2 covered by collective bargaining agreements. The existence of a Collective 3 Bargaining Agreement is, however, not to be interpreted as a reason not to comply 4 with Title VII. If any concern arises as to whether Defendants’ conduct conflicts 5 with Title VII and/or the Collective Bargaining Agreement, the Monitor will 6 resolve the issue. 7 12. Leads and Supervisors will be trained on a regular basis, as specified 8 below, on their responsibilities for recognizing sex harassment in the workplace 9 and promptly reporting it to human resources when recognized or reported. 10 G. 11 ABM shall ensure that its Internal Complaint Procedure contains 12 13 ELEMENTS OF THE INTERNAL COMPLAINT PROCEDURE the following elements: 1. A statement that it is unacceptable to retaliate against any employee 14 for use of the Internal Complaint Procedure, for assisting in the investigation of a 15 complaint, or for otherwise assisting in the utilization of the procedure. 16 2. 17 against a manager or other employee is substantiated, then such conduct will 18 result in appropriate discipline, up to and including discharge. 19 H. 20 1. Supervisors, Managers 21 No later than November 30, 2010, all of Employer’s managerial/supervisory A statement that if an allegation of sex harassment or retaliation TRAINING 22 employees shall be required to attend an intensive in- person or live training 23 program. 24 25 26 27 28 The training shall be at least two (2) hours in duration. Thereafter, the training shall be conducted annually live for a duration of two (2) hours. The training shall include coverage of the subjects of equal employment opportunity rights and responsibilities, harassment, retaliation, and ABM’s policies 18 [PROPOSED] CONSENT DECREE; ORDER 1 and procedures for reporting and handling complaints of, harassment and 2 retaliation. 3 The training for managers, supervisors shall also include: (1) training on 4 how to indentify harassment and retaliation, (2) their exposure and responsibility 5 under Title VII and state law; (3) 6 harassment and/or retaliation, and (4) their obligation to prevent and to take 7 corrective measures. how to properly handle complaints of 8 For the remainder of the term of this Decree, all new managerial and human 9 resources employees of Employer and all employees recently promoted from an 10 hourly to a managerial position shall receive the one hour of anti-harassment 11 training within sixty (60) days of hire or promotion. This training can be provided 12 online or on video,with the understanding that he/she will attend a two hour live 13 training program the next time it is offered. 14 15 All employees required to attend such training shall verify their annual attendance in writing. 16 The training for Employer shall be provided in both English and 17 Spanish for the duration of the Decree or a language that all managers, 18 supervisors, and leads best understand. 19 The Monitor shall work with the Employer to ensure that a sufficient 20 number of “trainers” are trained within ABM and the Employer to ensure 21 compliance under TitleVII and this Decree. 22 Within forty-five (45) days after the Effective Date or twenty (20) days after 23 hiring the Monitor, whichever is later, ABM shall submit to the Monitor a 24 description copy and description of the training to be provided and an outline of 25 the curriculum developed for the trainees. Any disputes between ABM and the 26 Monitor shall be reported to the EEOC for resolution. 27 28 The EEOC shall be given a minimum of ten (10) business days' advance 19 [PROPOSED] CONSENT DECREE; ORDER 1 written notice of the date, time and location of each training program provided 2 pursuant to this Decree, and agrees that an EEOC representative may attend any 3 such training program. 4 2. Human Resources 5 Human Resources employees and all persons involved in the complaint 6 process shall receive the training outlined above, but also an additional two 7 hours of specialized training on how to effectively investigate complaints of 8 harassment and retaliation. The trainer for this aspect of the training shall 9 have specialized training on how to conduct investigations in complaince with 10 Title VII. 11 This training shall also be taken by anyone who will be tasked with 12 investigating complaints for the Employer. Until this training is taken, no 13 individual who has not already been trained shall be allowed to investigate 14 complaints of sex harassment, or retaliation under this Decree. 15 3. Leads. 16 Employees of Employer designated as leads or forepersons, shall receive at 17 least 45 minutes of training annually on how to indentify sex harassment and 18 retaliation in the workplace and how to properly handle such complaints. 19 4. Service Workers1 20 All Employer’s service workers shall be trained on an annual basis in 21 English and in Spanish to ensure that the training is effective. All such employees' 22 training shall include coverage of the subjects of equal employment opportunity 23 rights and responsibilities, with an emphasis on sex harassment, retaliation, and 24 ABM’s policies and procedures for reporting and handling complaints of, 25 harassment and retaliation. The training should focus on aiding employees in 26 27 28 1 Service workers are defined herein as janitorial employees who are not managers, supervisors, or leads. 20 [PROPOSED] CONSENT DECREE; ORDER 1 identifying what is harassment and retaliation and how to utilize ABM’s policies 2 and procedures. The employees shall also be informed of external means, like the 3 EEOC, to complain about harassment and retaliation. Employer shall also 4 emphasize ABM’s expectations of holding leads, supervisors, and managers 5 accountable. 6 Defendants will work with the Monitor to determine the best way to conduct 7 training to effectively reach the employees. Development of any plan shall be 8 submitted to the EEOC for comment. 9 4. Emphasis of Zero Tolerance and Accountability 10 ABM shall play a video or DVD message from the CEO of ABM Industries 11 Incorporated emphasizing its zero tolerance for harassment and retaliation at all of 12 its training. The message shall include a commitment towards accountability of its 13 workforce and its commitment to the safety of its workforce. The Employer shall 14 play the video in English and translate it into Spanish at each training for the 15 duration of the Decree. 16 I. 17 The ABM Industries Incorporated Corporate HR or Internal Audit EEO COMPLIANCE AUDITS 18 Departments shall conduct unannounced audits at multiple Employer sites per year 19 including sites in the Fresno, Visalia and Bakersfield branches to ensure that leads, 20 supervisors, and managers are held accountable and to encourage employees to 21 report problems of harassment, discrimination, or related retaliation. 22 Auditors shall speak with hourly employees and ensure compliance with 23 anti-harassment and retaliation policies and procedures. To seek employee input, 24 the audits will be conducted outside the presence of management, supervisors, and 25 leads, without any onsite lead or supervisors’ advance knowledge of the audit. 26 Audits will be accompanied by a full report about employee feedback. Any 27 conduct signalling a sexual harassment, or retaliation issue will be subject to 28 21 [PROPOSED] CONSENT DECREE; ORDER 1 2 3 4 prompt and effective remedial action. The results of the audit shall be evaluated and submitted to the Monitor and to the EEOC in the annual report as set forth below. Audits shall also be done in areas where after monitoring the complaints, 5 there appears to be issues that require a more fuller examination of the complaints. 6 The audit shall also try to identify any alleged repeat offenders and shall include 7 interviewing former and reassigned employees to better understand the dynamics 8 in that region. ABM shall work with the Monitor on how best to conduct and 9 structure the audits to be effective, including the frequency and scope of the audits, 10 provided that they encompass sites in the Fresno, Visalia and Bakersfield branches. 11 J. 12 The Employer shall develop, implement, or revise its performance PERFORMANCE EVALUATIONS 13 evaluation forms for managers, supervisors, to include as measures for 14 performance compliance with EEO laws and with ABM’s Anti-Discrimination 15 and Retaliation Policies and Procedures. This shall specially include holding 16 managers and supervisors accountable for failing to report and/or take appropriate 17 action as required under ABM policies and procedures or Title VII. Managers and 18 supervisors shall be specifically held accountable for mishandling of complaints 19 by the leads. 20 At least forty (40) days prior to implementing the performance evaluation 21 and discipline system described above, Defendants shall provide the Monitor with 22 the proposed revisions in order to provide an opportunity for comment regarding 23 the revisions. 24 25 XIII. RECORD-KEEPING ABM Industries, Inc., and the Employer shall work with the Monitor to 26 establish a record-keeping procedure that provides for the centralized tracking of 27 ABM Industries Incorporated’s Hotline Complaints, Employer’s sex harassment 28 22 [PROPOSED] CONSENT DECREE; ORDER 1 complaints and the monitoring of Employers complaints to prevent retaliation. 2 The records to be maintained shall include: 3 1. 4 investigation, or resolution of every complaint of harassment or 5 retaliation against Employer for the duration of the Decree and the 6 identities of the parties involved; 7 2. 8 Industries’ anti-discrimination and anti-retaliation policy; and 9 3. All documents generated in connection with any complaint, All forms acknowledging employees’ receipt of ABM All documents verifying the occurrence of all training sessions 10 and names and positions of all attendees for each session as required 11 under this Decree; 12 4. 13 this Decree; 14 5. 15 counseling of employees determined to have engaged in behavior that 16 violates policies against sexual harassment and retaliation; 17 6. 18 inquiries into whether any complainant believes he/ she has been 19 retaliated against by Employer; and 20 7. 21 or review of performance evaluation measures for Employer’s 22 supervisors and managers. 23 24 25 26 27 28 A list of all Employers’ attendees to trainings required under All documents generated in connection with the monitoring and All documents generated in connection with confidential All documents generated in connection with the establishment The Employer shall make the aforementioned records available to the EEOC within ten (10) business days following a written request by the EEOC. XIV. REPORTING To demonstrate Consent Decree compliance, the Employer shall submit to the EEOC periodic reports as outlined herein. 23 [PROPOSED] CONSENT DECREE; ORDER 1 1. Initial Reports 2 a. 3 Date of this Decree, or one hundred twenty days after the hiring 4 of the Monitor, whichever is later, the Employer shall submit to 5 the Commission a report which contains: Within one hundred twenty (120) days of the Effective 6 i. 7 the terms of the Decree has been posted or mailed to the 8 Employer’s employees; 9 ii. A statement confirming that the required notice of The current anti-discrimination and anti-retaliation 10 policy; and 11 iii. 12 received the sexual harassment and retaliation policy, 13 specifying what department provided the employees the 14 policy and confirmed distribution of the same and 15 assuring that the acknowledgment forms are being 16 retained. 17 b. A statement confirming that all employees Confirmation of the establishment of the 18 harassment/retaliation Hotline in English and Spanish, 19 and a related tracking system; 20 i. 21 The report shall provide a detailed description of the tracking system that was developed; and 22 ii. A tracking report shall also be provided detailing 23 all complaints, response time, and all actions taken 24 including but not limited to investigation, 25 determination and discipline if any. 26 c. 27 methods developed with the Monitor for centralized tracking of 28 A summary of the procedures and record-keeping 24 [PROPOSED] CONSENT DECREE; ORDER 1 sex harassment and retaliation complaints and the monitoring of 2 such complaints; 3 d. 4 has been carried out; 5 e. 6 sessions required under this Decree that took place prior to the 7 reporting period; 8 f. 9 methods developed for the sexual harassment, and retaliation 10 Audit program, and production of any policies and procedures 11 developed for said system; and 12 A copy of the training materials used for all training A summary of the procedures and record-keeping i. 13 14 Confirmation that the Claimant-Specific injunctive relief a copy of all audit reports and corresponding action taken spanning the Effective Date to the reporting date. 2. Reports Regarding Training 15 a. 16 Decree, the Employer will mail by regular mail to the 17 Commission or via e-mail to anna.park@eeoc.gov.: Ten (10) days prior to any training required under this 18 i. 19 training materials; 20 ii. 21 conducting the training programs; and 22 iii. 23 Proposed sexual harassment and non-retaliation The identity the person(s) and/or organization(s) The dates, times and locations of each of the training sessions. 24 b. 25 Date of the Decree, and annually thereafter for the duration of 26 the Decree, ABM will provide the EEOC a report containing 27 the following information: 28 Within one hundred twenty (120) days of the Effective 25 [PROPOSED] CONSENT DECREE; ORDER 1 i. 2 trained during the reporting period and the purpose of 3 said training, i.e. as part of scheduled trianing or as a 4 response to sexual harassment, discrimiantion and/or 5 retaliation investigation; and 6 ii. 7 harassment / anti-retaliation policies for all employees 8 hired within the preceding six (6) months period were 9 secured. A description of all employees of the Employer Statements that acknowledge receipt of the anti- 10 c. Within 120 days from the Effective date, or twenty days 11 after the hiring of the Monitor, whichever is later, and semi- 12 annually thereafter, the Employer shall provide copies of its 13 employees’ complaints, the corresponding investigation report, 14 and a printout from ABM’s centralized tracking system, 15 Employer’s complaints of harassment and related complaints 16 of retaliation. The report of all sexual harassment and 17 retaliation complaints, including a copy of all investigation 18 notes, shall include all complaints made since the submission of 19 the immediately preceding report hereunder. The report of 20 complaints filed for sex harassment and/or retaliation 21 description shall include: the names of the individuals alleging 22 harassment and/ or retaliation, the nature of the harassment and/ 23 or retaliation, the names of the alleged perpetrators of 24 harassment or retaliation, the dates of the alleged harassment or 25 retaliation, the location of the alleged harassment, the identity 26 of the person(s) who investigated or resolved each complaint, 27 and whether the alleged wrongdoer had been previously 28 26 [PROPOSED] CONSENT DECREE; ORDER 1 accused of harassment or retaliation; 2 i. 3 include a statement of the result of each investigation into 4 the complaint. If no result has been reached at the time 5 of the report, the result shall be included in the next 6 report; 7 ii. 8 person who received the complaint; 9 iii. For each complaint listed above, the resport shall The identity and job titles of the complainant and A summary of the final course of action after 10 investigating the complaint; and 11 iv. 12 Defendants ensured compliance with the EEO laws 13 regarding sex harassment, and retaliation for the 14 preceding year under the terms of the decree, including 15 an analysis of the investigations, whether the training was 16 effective, whether managers/supervisors, and leads are 17 being held accountable, whether employees are taking 18 advantage of the complaint procedures, the effectiveness 19 of the audits, and any recommendations to improve. An anlysis by the Monitor of how effectively 20 d. A report by ABM to the EEOC detailing any changes of the 21 procedures or record-keeping methods for centralized tracking 22 of harassment and retaliation complaints and the monitoring of 23 such complaints within thirty (30) days before implementing 24 such changes; and 25 e. A report on the results of the audits and the actual audits 26 specifically outlining which locations were visited, what was 27 observed who was interviewed, and what course of action, if 28 27 [PROPOSED] CONSENT DECREE; ORDER 1 any, were taken. 2 XV. 3 COSTS OF ADMINISTRATION AND IMPLEMENTATION 4 OF CONSENT DECREE 5 6 Defendants shall bear all costs associated with its administration and implementation of its obligations under this Consent Decree. 7 XVI. 8 COSTS AND ATTORNEYS’ FEES 9 Each party shall bear its own costs of suit and attorneys’ fees. 10 XVII. 11 MISCELLANEOUS PROVISIONS 12 A. During the term of this Decree, Defendants shall provide any potential 13 successor-in-interest with a copy of this Consent Decree within a reasonable time 14 of not less than thirty (30) days prior to the execution of any agreement for 15 acquisition or assumption of control of any or all of Defendants’ facilities, or any 16 other material change in corporate structure, and shall simultaneously inform the 17 EEOC of same. 18 B. During the term of this Consent Decree, Defendants and their 19 successors shall assure that each of its officers, managers and supervisors is aware 20 of any term(s) of this Decree which may be related to his/her job duties. 21 C. Unless otherwise stated, all notices, reports and correspondence 22 required under this Decree shall be delivered to the attention of the Regional 23 Attorney, Anna Y. Park, U.S. Equal Employment Opportunity Commission, Los 24 Angeles District Office, 255 E. Temple St., 4th Fl., Los Angeles, CA 90012. 25 C. 26 27 28 The parties agree to entry of this Decree and judgment subject to final approval by the Court. /// 28 [PROPOSED] CONSENT DECREE; ORDER 1 2 3 4 5 XVIII. COUNTERPARTS AND FACSIMILE SIGNATURES This Decree may be signed in counterparts. A facsimile signature shall have the same force and effect of an original signature or copy thereof. All parties, through the undersigned, respectfully apply for and consent to the entry of this Consent Decree as an Order of this Court. 6 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 7 8 9 Dated: ________, 2010 By: _________________________ Anna Y. Park Derek Li Elizabeth Esparza-Cervantes Lorena Garcia-Bautista Attorneys for Plaintiff EEOC 10 11 12 13 14 Dated: _________, 2010 By: __________________________ LITTLER MENDELSON Keith Jacoby Laura Hayward Attorneys for Defendants ABM INDUSTRIES INCORPORATED, ABM JANITORIAL SERVICES, INCORPORATED, and ABM JANITORIAL NORTHERN CALIFORNIA 15 16 17 18 19 20 Dated: __________, 2010 By:_____________________________ ABM Industries Incorporated Dated: __________, 2010 By:_____________________________ ABM Janitorial Services, Incorporated Dated: __________, 2010 By:_____________________________ ABM Janitorial Northern California 21 22 23 24 25 26 27 28 29 [PROPOSED] CONSENT DECREE; ORDER 1 2 3 ORDER Good cause appearing, The Court hereby retains jurisdiction and the provisions of the foregoing 4 Consent Decree are hereby approved and compliance with all provisions thereof is 5 fair and adequate and finds that the provisions of this Consent Decree are hereby 6 approved. Compliance by the Defendants in this case of the provisions is Hereby 7 Ordered. 8 9 10 IT IS SO ORDERED. Date: _September 24, 2010_ _/s/ Lawrence J. O’Neill__________ The Honorable Lawrence J. O’Neill United States District Court Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 [PROPOSED] CONSENT DECREE; ORDER