U.S. Equal Employment Opportunity Commission v. Clougherty Packing, LLC et al

Filing 7

CONSENT DECREE by Judge Dolly M. Gee: The Parties agree that this Decree completely and finally resolves all claims made in the EEOC's Complaint filed in this action. In settlement of this Action, Defendant shall pay a total of $100,000.00 ("Total Settlement Amount") in monetary relief. Defendant shall bear all costs associated with its administration and implementation of its obligations under this Decree. Each Party shall bear its own costs of suit and attorneys' fees. See document for injunctive relief and other details. ( MD JS-6. Case Terminated ) (gk)

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JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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)
) Case No. : CV 17-7221-DMG (AFMx)
)
)
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) CONSENT DECREE [5]
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v.
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CLOUGHERTY PACKING, LLC
)
Defendant.
)
________________________________ )
)
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,

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I.

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INTRODUCTION
Plaintiff U.S. Equal Employment Opportunity Commission (the “EEOC” or

“Commission”) and Defendant Clougherty Packing, LLC d/b/a Farmer John
(hereinafter “Defendant”) hereby stipulate and agree to entry of this Consent
Decree to resolve the Commission’s Complaint, filed under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). The
EEOC alleges Defendant engaged in unlawful employment practices by subjecting
Charging Parties and other similarly situated individuals (hereinafter “Claimants”)
to a sexually hostile work environment in violation of §703(a) of Title VII, 42
U.S.C. § 2000e-2(a).
II.

PURPOSES AND SCOPE OF THE CONSENT DECREE
In the interest of resolving this matter, the Commission and Defendant

(hereinafter “the Parties”) have agreed that this action should be finally settled by
entry of this Consent Decree (“Decree”). This Decree shall be binding on and
enforceable against Defendant and its officers, directors, agents, successors and
assigns. The scope of this Decree is company-wide unless otherwise noted.
Nothing in this Agreement shall be deemed or can be used as an admission by
Defendant that any unlawful employment practices in fact occurred. The Parties
have entered into this Decree for the following purposes:
A.

To provide appropriate monetary and injunctive relief;

B.

To ensure that Defendant’s employment practices comply with Title

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VII;
C.

To ensure a work environment free from sex harassment;

D.

To ensure training for Defendant’s managers, supervisors, human

resource, and other employees with respect to their obligations and rights under
Title VII;
E.

To review and update Defendant’s procedures for handling

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harassment complaints;

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F.

handling discrimination, and harassment complaints in the workplace; and

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G.
III.

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District Court, Central District of California, captioned U.S. Equal Employment
Opportunity Commission vs.Clougherty Packing LLC; Case No. 2:17-cv-07221AS (hereafter “Action”). The Decree also completely and finally resolves all
claims made in, and arising out of Charge Nos. 480-2010-00283, 480-2010-00079,
and 480-2012-02916.
B.

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Nothing in this Decree shall be construed to preclude the EEOC from

bringing suit to enforce this Decree in the event that Defendant fails to comply
with the terms of 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.

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The Parties agree that this Decree completely and finally resolves all

claims made in the EEOC’s Complaint filed in this action in the United States

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To avoid the time, expense, and uncertainty of further litigation.

RELEASE OF CLAIMS
A.

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To provide an appropriate and effective mechanism for receiving and

D.

This Decree in no way affects the EEOC’s right to bring, process,

investigate or litigate other charges that may be in existence or may later arise
against Defendant other than the claims brought in this Action.
IV.

JURISDICTION
A.

The Court has jurisdiction over the parties and the subject matter of

this Action. The Complaint asserts claims that, if proven, would authorize the
Court to grant the relief set forth in this Decree.
B.

The terms and provisions of this Decree are fair, reasonable, and just.

C.

This Decree conforms to the Federal Rules of Civil Procedure and

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Title VII, and does not derogate the rights or privileges of any person.

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D.

in the best interest of the Parties.

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E.

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be necessary to fully implement the relief provided herein.
V.

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EFFECTIVE DATE AND DURATION OF DECREE
A.

The provisions and agreements contained herein are effective

immediately on the date which this Decree is entered by the Court (“Effective
Date”).

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The Court shall retain jurisdiction over this Action for the duration of

the Decree for the purposes of entering all orders, judgments, and decrees that may

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Entry of this Decree will further the objectives of Title VII and will be

B.

Except as otherwise provided herein, this Decree shall remain in

effect for two (2) years after the Effective Date, provided Defendant substantially
complies with the terms of this Decree. In the event Defendant does not
substantially comply with the terms of this Decree, the Court may order any
extension of the duration of this Decree necessary to effectuate the Decree’s
purposes.
VI.

COMPLIANCE AND DISPUTE RESOLUTION
A.

If the Commission has reason to believe that Defendant has in any

way failed to comply with any provision of this Decree, the Commission may
bring a motion action before this Court to enforce the Decree. Before filing such a
motion, however, the Commission shall notify Defendant of the nature of the
dispute. This notice shall specify the particular provision(s) with which the
Commission believes Defendant has failed to comply and be served via overnight
delivery on Defendant and its counsel. Absent a showing that the delay will cause
irreparable harm, Defendant shall have twenty (20) business days from the date of
receipt of the notice (“Dispute Resolution Period”) to attempt to compliance.
B.

The Parties agree to cooperate with each other and use their best

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efforts to resolve any dispute raised by the EEOC.

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C.

irreparable harm, the Commission may immediately initiate an enforcement action
in this Court, seeking all available relief, including an extension of the duration of
the Decree. The notice to Defendant must specify the facts which the Commission
claims establishes a showing and provide at least five (5) business days’ notice and
opportunity to cure. Where there is no such showing, the Commission may initiate
an enforcement action after the expiration of the Dispute Resolution Period.
VII. MODIFICATION AND SEVERABILITY

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A.

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any provision of this Decree will be effective unless made in writing and signed by
an authorized representative of each Party.
B.

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If one or more provisions of this Decree are rendered unlawful or

unenforceable, the parties shall make good faith efforts to agree upon the
appropriate amendments to this Decree necessary to effectuate its purposes. If the
Parties are unable to reach an agreement, the Court shall order the appropriate
alternative provisions necessary to effectuate the purposes of the Decree. Should
one or more provisions of this Decree be deemed unlawful, all other provisions
shall remain in full force and effect.
VIII. MONETARY RELIEF

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This Decree constitutes the complete understanding of the Parties with

respect to the matters contained herein. No waiver, modification or amendment of

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Where there is a showing that a Dispute Resolution Period will cause

A.

In settlement of this Action, Defendant shall pay a total of One

Hundred Thousand Dollars ($100,000.00) (“Total Settlement Amount”) in
monetary relief.1 Allocation of the Ninety Thousand Dollars ($90,000.00)
remaining settlement amount to be paid to each Claimant shall be at the sole
discretion of the EEOC.
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Of the $100,000 Total Settlement Amount, Defendant shall allot up to $10,000 to provide
additional training.

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B.

The EEOC shall provide Defendant’s counsel with a Distribution List

containing the name, address, and the amount of money to be distributed to each
Claimant. Within ten (10) business days of the delivery of the Distribution List,
Defendant shall send a check, via certified mail, return receipt requested, a check
to each of the Claimants in the amounts designated by the EEOC. Defendant may
use a third party administrator, such as Simpluris, to make such payments on its
behalf.
C.

If any of the checks are returned to Defendant as undeliverable,

Defendant shall immediately notify the EEOC and cooperate with the EEOC to
make sure the checks are reissued to the Claimants as soon as possible.
D.

The EEOC has designated the monies to be paid to the Claimants as

non-wage compensation under Title VII and no tax withholding shall be made.
Defendant or its Claims Administrator shall prepare and distribute 1099 tax
reporting forms to each Claimant, and shall make appropriate reports to the
Internal Revenue Service and other tax authorities. Defendant shall be solely
responsible for any costs associated with the issuance and distribution of a 1099
tax reporting form to the Claimants. Claimants shall be solely responsible for
taxes payable, if any, on their respective portion of settlement proceeds.
E.

Within five (5) business days of the issuance of each settlement check

and any 1099 form, Defendant or its Claims Administrator shall provide a copy of
each check and related correspondence to the Regional Attorney, Anna Y. Park,
U.S. Equal Employment Opportunity Commission, 255 East Temple Street, 4th
Floor, Los Angeles, CA 90012.
F.

If for any reason any portion of the Total Settlement Amount cannot

be distributed to a Claimant as designated by the EEOC, the EEOC shall designate
the residual to go to a non-profit charity, which supports the work of educating
women particularly in vulnerable communities, to receive the residual amount left

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in the Settlement Fund.
IX.

GENERAL INJUNCTIVE RELIEF
A.

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1.

supervisory employees), successors, assigns, and all those in active concert or
participation with them, or any of them, shall be enjoined from engaging in
employment practices in violation of Title VII. Such employment practices
include:
(a)

(b)

sexual harassment; or
(c)

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2.

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Non-Retaliation

Defendant, its directors, officers, agents, management (including all
supervisory employees), successors, assigns, and all those in active concert or
participation with them, or any of them, shall be enjoined from engaging in,
implementing, or permitting any action, policy, or practice that retaliates against
any current or former employee or applicant because he or she has in the past or
during the term of this Decree:
(1)

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creating, facilitating, or permitting a hostile work environment in
violation of Title VII, including on the basis of sex.

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engaging in or becoming a party to any action, policy, or practice that
discriminates against any employee in violation of Title VII, including

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discriminating against persons in violation of Title VII, including
sexual harassment;

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Non-Discrimination

Defendant, its directors, officers, agents, management (including all

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Non-Discrimination and Non-Retaliation

opposed any practice that he or she believed to be discriminatory,
harassing, or retaliatory;

(2)

filed a charge with the EEOC alleging such a practice;

(3)

testified or participated in any manner in any investigation (including

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any internal investigation undertaken by Defendant), proceeding in

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connection with this case and/or relating to any claim of a Title VII

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violation;
(4)

was identified as a possible witness or Claimant in this Action;

(5)

asserted any rights under this Decree; or

(6)

sought and/or received any relief in accordance with this Decree.

B.

Policies Concerning Discrimination, Harassment, and Retaliation

1.

Within thirty (30) days after the Effective Date, Defendant shall draft

or review and then revise its policies and procedures on discrimination,
harassment, and retaliation (“final policy”) as described below.
2.

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The final policy shall include:
(a)

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a clear explanation of prohibited conduct in violation of Title

(b)

a complete copy of the final internal complaint procedure as

described below in sub-section C.
3.

The final policy shall also include assurance that Defendant shall:
(a)

hold all employees, including management, supervisory, lead

and human resources employees, accountable for engaging in conduct prohibited
under Title VII or this Decree; and
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hold all management, supervisory, and human resources

employees accountable for failing to take appropriate action to address
discrimination, harassment, or retaliation.
(c)

notify the Teamsters and Local 770 that leads will be held

accountable for complying with the final policy, reporting any violations known to
them to Human Resources and not retaliating against any employee who uses the
internal complaint procedure, assists in the investigation of a complaint, or
otherwise assists in a complaint.

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C.

Complaint Procedure

1.

Within thirty (30) days after the Effective Date, Defendant shall draft

or review and revise its complaint procedure as described below.
2.

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(a)

Defendant’s internal complaint procedure, may file an external complaint to any
appropriate person or agency, and/or may file an external complaint with
Smithfield Foods, Inc.;
(b)

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(c)

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assisting in the investigation of a complaint or for otherwise assisting in a
complaint;
(d)

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the internal complaint procedure does not replace the right of

any employee to file a charge or complaint of discrimination, harassment, or
retaliation under any available municipal, state, or federal law, and will provide the
contact information for the EEOC and state and local Fair Employment Practice
(FEP) agencies; and

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Defendant shall not tolerate retaliation against any employee for

use of the internal complaint procedure or any external complaint procedure, for

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an employee may initiate an internal complaint verbally or in

writing to any appropriate person, and that no special form is required;

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an employee who believes that he or she has suffered

discrimination, harassment, or retaliation may file an internal complaint using

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The internal complaint procedure shall clearly state that:

(e)

if an allegation of discrimination or retaliation against any

employee is substantiated, then such conduct will result in appropriate discipline,
up to and including discharge.
3.

The internal complaint procedure shall ensure that Defendant will:
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maintain the confidentiality of the complaint, complainant and

investigation to the fullest extent possible;
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take every reasonable step to promptly resolve complaints;

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(c)

conducted by Smithfield Foods, Inc. and/or a person trained to conduct such
investigations who is not connected with the complaint;

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(d)

(e)

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(f)

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action;
(g)

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action taken; and
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remedial actions taken.
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dissatisfied with the results of an internal investigation.
5.

The internal complaint procedure shall NOT require that the

complainant:
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confront his or her harasser;

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file an internal complaint instead of or in addition to an external

complaint; or

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The internal complaint procedure shall also provide an appeal

procedure to an appropriate Defendant representative, should the complainant be

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track investigations and maintain written records of all

investigatory steps, any findings or conclusions of the investigation and any

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communicate with the complainant in writing regarding the

status of the complaint, investigation, results of the investigation and any remedial

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provide opportunity for the complainant to respond to tentative

findings, except in those circumstances in which it is necessary to take immediate

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ensure the proper scope for investigating complaints and/or

allegations of discrimination, harassment, or retaliation;

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interview all relevant witnesses, including the complainant, and

review all relevant documents;

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promptly commence a thorough investigation that shall be

(c)

initiate the complaint process only by submitting a written

complaint.
6.

Defendant shall confidentially follow-up with every complainant three

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months, six months, and twelve months after final resolution of the complaint to
inquire whether the complainant believes that he or she has been further harassed
and/or retaliated against, and, if necessary, Defendant shall investigate any
allegations of retaliation.

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7.

disseminate the information regarding the hotline to all of Defendant’s employees.
Defendant shall inform all employees that a complaint can be lodged at any time
with the toll-free complaint hotline. The hotline shall provide instructions about
making a complaint in both English and Spanish. All calls to the hotline shall be
tracked by Defendant during the term of the Decree. Defendant shall also
publicize the EEOC’s general toll-free number of [phone].

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8.

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all such complaints, including but not limited to those complaints made through the
hotline.
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investigations regarding complaints of sexual harassment and/or retaliation; and to
evaluate sexual harassment and/or retaliation issues in different departments.
D.

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Finalizing and Distribution of Final Policy and Complaint Procedure

1.

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Defendant shall designate Smithfield Foods Inc. to assist Defendant in

receiving complaints of sexual harassment and/or retaliation; to assist in

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Defendant shall track all complaints filed under the revised internal

complaint procedures and retain records regarding investigation and resolution of

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Defendant shall establish a toll-free complaint hotline (“hotlines”) and

Within thirty (30) days after the Effective Date, Defendant shall

provide the Commission with a copy of the above described final policies,
including the revised internal complaint procedure described above in sub-section
C.
2.

Upon receipt, the EEOC shall have thirty (30) days to review and/or

comment on the revised policies, including the revised internal complaint
procedures described above in sub-section C.

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3.

If the EEOC does not provide comments within thirty (30) days of

receiving the revised policies, Defendant shall distribute the final policies in both
English and Spanish, including the revised internal complaint procedure described
above in sub-section F, to all employees, including management, supervisory, lead
and human resources employees. Defendant shall have each employee who
receives a copy of the final policies sign a form acknowledging receipt.
4.

Throughout the term of this Decree, Defendant shall post the final

policies, including the revised internal complaint procedures described above in
sub-section C, in a clearly visible location frequented by employees. Such posting
shall be in both English and Spanish.
E.

Training

1.

All non-management employees shall be required to attend a live

training program of at least one hour regarding discrimination, harassment, and
retaliation. The training under this section shall include a review of EEO Law;
every employee’s rights and responsibilities under Title VII and this decree; and
Defendant’s final policies and procedures for reporting and handling complaints of
harassment, discrimination, and retaliation. Examples shall be given of the
prohibited conduct to ensure understanding by the employees. All trainings shall
be designed to effectively teach adult learners and shall be conducted in both
English and Spanish.
The training stated in subsection E.1. shall be mandatory and shall occur
once every year for the term of this Decree for non-management employees. The
first training shall occur within ten (10) days after EEOC’s comments on the
training curriculum, as described in sub-section 10 below, or after sixty (60) days
from the Effective Date, whichever is later. Any non-management employee who
fails to attend any scheduled training shall be trained within (30) days of the live
training set forth above.

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2.

All managerial and supervisory employees, including any employee

who is in a position to receive complaints of discrimination, harassment, and
retaliation, shall be required to attend a live Management Training at least two
hours once every year for the term of this Decree. The first Management Training
shall begin within ten (10) days after the EEOC’s comments on the training
curriculum, as described in sub-section 10 below, or after sixty (60) days from the
Effective Date, whichever is later and shall be completed by all management
within sixty (60) days. Any managerial and supervisory employee who fails to
attend any scheduled Management Training shall be trained within (30) days of the
live training set forth above.
All Management Training shall include a review of EEO law; every
employee’s rights and responsibilities under Title VII; Defendant’s final policies
and procedures for reporting and handling complaints of harassment,
discrimination, and retaliation; how to properly handle and investigate complaints
of discrimination, harassment and retaliation in a fair and neutral manner; how to
take preventive and corrective measures against discrimination, harassment, and
retaliation; and how to recognize and stop discrimination, harassment, and
retaliation.
3.

All Human Resources employees shall receive at least three hours of

advanced Human Resources Training (“HR Training”) on investigating
complaints of discrimination, harassment, and retaliation; how to take preventative
and corrective measures against discrimination, harassment, and retaliation; how to
recognize and stop harassment, discrimination, and retaliation; and how to monitor
its responsiblities of human resources personnel. The HR Manager shall attend the
EEOC’s Training for New Investigators in Washington D.C. This HR Training
shall be provided to Smithfield by the HR Manager after attending the EEOC’s
training and/or through an outside provider approved by the EEOC. This HR

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Training shall also include review and feedback on the Human Resources
employee’s response to actual complaints received during the term of the Decree.
The HR Training shall occur within fifteen (15) days after EEOC’s comments on
the training curriculum, as described below, or after sixty (60) days from the
Effective Date, whichever is later, and once every year for the term of the Decree.

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Within thirty (30) days of the date of hire, for the remainder of the term of
this Decree, every new employee, including non-managerial, managerial,
supervisory, lead, and human resources employees, shall receive the appropriate
training described above.

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Within thirty (30) days of the date of promotion, for the remainder of the
term of this Decree, every employee promoted from a staff position to a
managerial, supervisory, lead or human resources position shall receive the above
described Management or HR Training.

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Any employee required to attend any training under this Decree shall verify
in writing his or her attendance at each training.

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Within thirty (30) days after the Effective Date, Defendant shall submit to
the EEOC a description of the trainings to be provided and an outline of the
curriculum developed for the trainees.

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Upon receipt, the EEOC may provide comments within thirty (30) days
regarding any necessary revisions to the training.

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Defendant shall give the EEOC a minimum of twenty (20) business days
advance written notice of the date, time and location of each training provided
pursuant to this Decree. An EEOC representative may attend any such training, at
the sole discretion of the EEOC.
X.

RECORD-KEEPING
Defendant shall work with Smithfield Foods Inc. to establish a record-

keeping procedure that provides for the centralized tracking of discrimination,

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harassment and retaliation complaints and the monitoring of such complaints to
prevent retaliation. The records to be maintained shall include:

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A.

documents relating to all investigations or resolutions of any complaints and the
identities of all witnesses identified by the complainant and/or through Defendant’s
investigation;

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B.

C.

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D.

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all documents generated in connection with Defendant’s confidential

follow-up inquiries into whether any complainant believes he or she has been
retaliated against; and

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all documents verifying the occurrence of all training sessions and

names and positions of all attendees for each session as required under this Decree;

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all forms acknowledging employees’ receipt of Defendant’s revised

anti-discrimination, anti-harassment and anti-retaliation policy; and

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all documents generated in connection with any complaint, including

E.

Defendant shall make the aforementioned records available to the

EEOC within ten (10) business days following a written request by the EEOC.
XI.

REPORTING
In addition to the notice and reporting requirements above, Defendant shall

provide the following reports to the EEOC in writing, by mail or e-mail:
A.

Within ninety (90) days after the Effective Date, Defendant shall

submit to the EEOC an initial report containing:
1.

a copy of the final anti-discrimination, anti-harassment and

anti-retaliation policies, including the final complaint procedures;
2.

a summary of the procedures and record-keeping methods

developed with Smithfield Foods Inc. for centralized tracking of discrimination,
harassment and retaliation complaints and the monitoring of such complaints;
3.

a copy of all prior (since January 2, 2017) sexual harassment

and retaliation complaints made, investigated or resolved, including the names of

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the complainants; the nature of the complaint; the names of the alleged perpetrators
of discrimination, harassment or retaliation; the dates of the alleged harassment or
retaliation; a brief summary of how each complaint was resolved; and the identity
of each of Defendant employee(s) who investigated or resolved each complaint and
the identity and most recent contact information for each witness identified by the
complainant and/or investigation;

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4.

this Decree and the final revised anti-discrimination, anti-harassment and antiretaliation policy have been posted; and

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5.
B.

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Defendant shall also provide the following reports annually

1.

complete attendance lists for all training sessions required

under this Decree that took place during the previous 12 months; and

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a statement confirming all training has been completed.

throughout the term of this Decree:

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a statement confirming that the required notices pertaining to

2.

a description of all discrimination, harassment and retaliation

complaints made, investigated or resolved in the previous 12 months, including the
names of the complainants; the nature of the complaint; the names of the alleged
perpetrators of discrimination, harassment or retaliation; the dates of the alleged
harassment or retaliation; a brief summary of how each complaint was resolved;
and the identity of each of Defendant employee(s) who investigated or resolved
each complaint and the identity and most recent contact information for each
witness identified by the complainant and/or investigation.
C.

A report detailing any planned changes to the policies, procedures or

record-keeping methods for complaints, at least thirty (30) days prior to
implementing such changes.
XII. EEOC’S REQUEST FOR ADDITIONAL INFORMATION
Within thirty (30) days of Defendant’s report, the EEOC may request in

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writing for additional information and/or documents, and/or for Defendant’s
employees to be made available. Within thirty (30) days of such request,
Defendant is to make this information and/or documents, and/or make these
individuals available to the EEOC.
XIII. COSTS OF ADMINISTRATION AND IMPLEMENTATION OF
CONSENT DECREE
Defendant shall bear all costs associated with its administration and
implementation of its obligations under this Decree.
XIV. COSTS AND ATTORNEYS’ FEES
Each Party shall bear its own costs of suit and attorneys’ fees.
XV. MISCELLANEOUS PROVISIONS
A.

During the term of this Decree, Defendant shall provide any potential

successor-in-interest with a copy of this Decree within a reasonable time of not less
than thirty (30) days prior to the execution of any agreement for acquisition or
assumption of control of any or all of Defendant’s facilities, or any other material
change in corporate structure, and shall simultaneously inform the EEOC of same.
B.

During the term of this Decree, Defendant and its successors shall

ensure that each of its directors, officers, human resource personnel, managers,
supervisors, and any employee who is in a position to receive complaints of
discrimination, harassment, and retaliation is aware of any term(s) of this Decree
which may be related to his/her job duties.
C.

Unless otherwise stated, all notices, reports and correspondence

required under this Decree shall be delivered to the attention of the Regional
Attorney, Anna Y. Park, U.S. Equal Employment Opportunity Commission, Los
Angeles District Office, 255 E. Temple St., 4th Fl., Los Angeles, CA 90012.
D.

The parties agree to entry of this Decree and judgment subject to final

approval by the Court.

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XVI. 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
Decree as an Order of this Court.
The provisions of the foregoing Consent Decree are hereby approved and
compliance with all provisions thereof is HEREBY ORDERED. The Court hereby
retains jurisdiction over this Consent Decree until its termination, as determined by
this Court.
IT IS SO ORDERED.

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DATED: October 12, 2017

_____________________________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE

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