U.S. Equal Employment Opportunity Commission v. Marquez Brothers International, Inc. et al

Filing 144

CONSENT DECREE; ORDER signed by District Judge Anthony W. Ishii on 09/17/2019. 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. (Gonzales, V)

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Anna Y. Park, SBN 164242
Sue J. Noh, SBN 192134
Natalie Nardecchia, SBN 246486
Gina Carrillo, AZ SBN 030579
Andrea E. Ringer, CA SBN 307315
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
255 East Temple Street, Fourth Floor
Los Angeles, CA 90012
Telephone: [phone]
Facsimile: [phone]
E-Mail:
[e-mail]
Sara Smolik, MA SBN 661341
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
John F. Kennedy Federal Bldg.
Rm 475, Gov’t Center
Boston, MA 02203
Telephone: [phone]
Facsimile: [phone]
E-Mail:
[e-mail]
Aimee L. McFerren, KY SBN 88912
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Louisville Area Office
600 Dr. Martin Luther King, Jr. Place, Suite 268
Louisville, KY 40202
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
Attorneys for Plaintiff
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

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Plaintiff,

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vs.

) Case No.: 1:17-cv-00044-AWI-EPG
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) CONSENT DECREE; ORDER
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CONSENT DECREE; ORDER

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MARQUEZ BROTHERS INTERNATIONAL,
INC., MARQUEZ BROTHERS
ENTERPRISES, INC.,
MARQUEZ BROTHERS FOODS, INC.,
MARQUEZ BROTHERS SOUTHERN
CALIFORNIA, INC., MARQUEZ
BROTHERS NEVADA, INC., MARQUEZ
BROTHERS TEXAS I, INC., AND DOES 110, INCLUSIVE
Defendant(s).

CONSENT DECREE

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On January 11, 2017, the U.S. Equal Employment Opportunity Commission

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(“Commission” or “EEOC”) commenced this action under Title VII of the Civil Rights Act of

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1964 and Title I of the Civil Rights Act of 1991 (“Title VII”) against Defendants Marquez

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Brothers International, Inc., Marquez Brothers Enterprises, Inc., Marquez Brothers Foods, Inc.,

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Marquez Brothers Southern California, Inc., Marquez Brothers Nevada, Inc., and Marquez

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Brothers Texas I, Inc. (individually, “Defendant” and collectively, “Defendants”) to correct

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alleged unlawful employment practices in hiring on the basis of race and to provide appropriate

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relief to a class of individuals who were allegedly denied unskilled labor positions and adversely

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affected by such practices at each of Defendants’ facilities. EEOC also alleged that Defendants

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engaged in violations of Title VII’s record-keeping requirements by failing to make, keep, and

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preserve records relevant to the determination of whether unlawful employment practices have

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been or are being committed and failed to file Employer Information EEO-1 Reports (“EEO-1

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Reports”). Defendants deny the allegations made by EEOC.

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EEOC and Defendants enter into this Consent Decree to resolve this action and all claims

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asserted in EEOC’s Complaint and Second Amended Complaint and to promote and effectuate

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the purposes of Title VII. The parties agree that this Consent Decree may be entered into

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without Findings of Fact and Conclusions of Law being made and entered by the Court.

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The Court finds that it has jurisdiction over the subject matter of this action and the

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parties for purposes of the action, entry of the Consent Decree, and all proceedings related to the

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Consent Decree.

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CONSENT DECREE; ORDER

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The Court will retain jurisdiction to enforce this Consent Decree and its terms for all

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purposes including, but not limited to, the entering of all orders, judgments, and decrees as

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necessary to implement the relief provided herein for the duration of this Decree.

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The Court, having examined the terms and provisions of the Consent Decree, further

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finds that it is reasonable, just, and in accordance with the Federal Rules of Civil Procedure and

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Title VII.

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The Court further finds that entry of this Consent Decree will further the objectives of

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Title VII and will be in the best interest of the parties, those for whom the EEOC seeks relief,

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and the public.

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NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:

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I.

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GENERAL PROVISIONS
1.

This Decree is final and binding between the Parties and resolves all

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claims in EEOC’s Complaint and Second Amended Complaint in this case and the underlying

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charges of discrimination in EEOC Charge No. 485-2010-00462 and No. 846-2011-68245.

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2.

Nothing in this Decree shall be construed to preclude any party from

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bringing suit to enforce this decree in the event that any party hereto fails to perform the

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promises and representations herein.

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3.

No party shall contest the Court’s jurisdiction to enforce this Decree and

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its terms or the right of the EEOC to bring an enforcement suit upon breach of any term of this

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Decree. The Court will retain jurisdiction over any such enforcement proceeding during the

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duration of the Consent Decree.

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4.

Other than EEOC Charges Nos. 485-2010-00462 and 846-2011-68245,

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this Decree does not resolve any charge of discrimination currently pending before EEOC, or

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any charge that may be filed in the future. EEOC reserves all rights to proceed regarding matters

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not covered in this Decree.

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5.

This Decree is being issued with the consent of the parties and represents

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the compromise of disputed claims that the parties recognize would require protracted and

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additional costly litigation to resolve. This Decree does not constitute an adjudication or finding

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CONSENT DECREE; ORDER

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by this Court on the merits of the allegations of the Complaint or Second Amended Complaint.

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Nothing contained in this Decree shall be construed as an admission of liability on the part of

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Defendants, or any one of them, each one of which expressly and unequivocally denies that they

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engaged in any pattern or practice of unlawful discrimination on the basis of race and/or national

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origin or violated any recordkeeping requirements set forth in Title VII.

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6.

Defendant Marquez Brothers Southern California, Inc. (“MBSC”) was

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involved in a merger with Marquez Brothers Enterprises, Inc. (“MBE”), effective March 6, 2019,

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in which MBE was the surviving corporation and MBSC ceased to exist under California law.

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II.

DEFINITIONS

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7.

“Effective Date” shall mean the date this Decree is entered by the Court.

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8.

“Staffing Agency” shall mean any third-party person or entity regularly

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undertaking, for compensation, the procurement of workers for one or more of the Defendants in

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Affected Positions or the procurement for workers opportunities to work for one or more of the

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Defendants in Affected Positions.

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9.

“Affected Positions” shall mean the following positions: Cheese Molder,

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Cheese Demolder, Cheese Cutter, Cooker, Dryer Operator, Finishing Tables, General Labor,

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Hoop Washer, Janitor, Machine Operator, Packer/Packaging, Production, Sanitation/CIP

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Operator, Warehouse Laborer. Affected Positions shall also include Merchandiser and/or Order

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Picker if the Monitor, within the first 60 days of the Effective Date determines, based upon the

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written job descriptions, information provided by the parties, observation, and/or evidence

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received by the Monitor, that the position(s) constitute unskilled labor.

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10.

“Potential Claimant” is any individual who receives notice of the

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settlement and claims process, including individual applicants identified by any of the

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Defendants, individuals identified by the EEOC, or individuals who, upon receiving notice of the

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settlement, believe they may have a right to make a claim.

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11.

The “Monitor” shall refer to the Decree Compliance Monitor described in

Paragraph 74, below.

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CONSENT DECREE; ORDER

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12.

“Best Efforts,” shall mean that each Defendant that has workers in the

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Affected Positions in a Subject Facility has complied in good faith with the provisions of this

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Decree concerning training, hiring practices, selection of Staffing Agencies, communications

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with Staffing Agencies, and responsibilities with respect to the Monitor.

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13.

“Subject Facilities” shall include those Marquez Brothers International,

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Inc. facilities located in California with individuals working in the Affected Positions. “Subject

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Facilities” shall also include any other Defendant’s facility or facilities that has fifteen (15) or

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more individuals working in the Affected Positions in any calendar year during the term of the

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Decree.

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III.

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This Decree shall remain in effect for three (3) years after the Effective

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This Decree will not expire while any enforcement action concerning this

Date.

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The provisions and agreements contained herein are effective immediately

upon the date that this Decree is entered by the Court (“Effective Date”).

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SCOPE AND DURATION

Decree is pending before the Court.

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17.

The Court retains jurisdiction over this action during the duration of this

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Decree and will have all available powers to enforce this Decree, including but not limited to

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monetary sanctions, injunctive relief, and extension of the term of the Decree. The matter may

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be administratively closed but will not be dismissed during the duration of the Decree

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IV.

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MODIFICATION AND SEVERABILITY
18.

This Decree constitutes the entire agreement and commitments of the

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

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any provision of this Decree will be effective unless made in writing and signed by an authorized

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representative of each of the Parties and approved by the Court.

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19.

If any provision(s) of this Decree are found to be unlawful, the Parties

shall make good faith efforts to agree upon appropriate amendments to this Decree in order to

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CONSENT DECREE; ORDER

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effectuate the purposes of the Decree. In any event, only such provision(s) found to be unlawful

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shall be severed, and the remainder of the Decree shall remain in full force an effect.

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V.

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INJUNCTION
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Each Defendant, its officers, agents, management (including all

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supervisory personnel), successors, assigns, and all those in active concert or participation with

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them, or any of them, are hereby enjoined from engaging in any employment practice that results

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in the failure to hire and/or denial of employment opportunities in the Affected Positions at a

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Subject Facility to any individual on the basis of race and/or national origin.

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21.

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

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supervisory personnel), successors, assigns, and all those in active concert or participation with

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them, or any of them, are hereby enjoined from engaging in, implementing, or permitting any

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action, policy, or practice with the purpose of retaliating against any applicant, current employee,

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or former employee of any Defendant or its successors, or either of them, because he or she has

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in the past, or during the term of this Decree, (a) opposed any practice made unlawful under Title

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VII; (b) filed a charge of discrimination alleging such practice; (c) testified or participated in any

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manner in any investigation (including, without limitation, any internal investigation undertaken

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by Defendants or their successors) or proceeding in connection with this action, or relating to any

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claim of a Title VII violation; (d) was identified as a possible witness or claimant in this action;

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(e) asserted any rights under this Decree; or (f) sought and/or received any relief in accordance

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with this Decree.

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

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supervisory personnel), successors, assigns, and all those in active concert or participation with

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it, or any of them, are hereby enjoined from failing to keep, preserve, and retain all placement

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and hiring related materials with respect to Affected Positions at Subject Facilities (e.g., all

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applications, resumes, letters from prospective applicants, written inquiries concerning

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opportunities for work, correspondence with potential applicants or Staffing Agencies

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concerning opportunities for work, job postings, applicant evaluations, notes concerning

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applications for employment, and information regarding individuals placed or referred for work

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CONSENT DECREE; ORDER

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in Affected Positions at a Subject Facility with a Defendant by Staffing Agencies) for the

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duration of this Decree. All such materials must be retained in their original form or in an

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accessible electronic format.

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23.

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

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supervisory personnel), successors, assigns, and all those in active concert or participation with

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it, or any of them, are hereby enjoined from failing to file annual Employer Information EEO-1

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Reports (“EEO-1 Reports”) as required by law during the term of this Decree.

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VI.

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MONETARY RELIEF
24.

Defendants will pay a total of $2,000,000 (“Gross Sum”) into a Qualified

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Settlement Fund (“QSF”) as part of the resolution of this litigation. The money paid into the

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QSF shall be distributed to aggrieved individuals and paid into the fund on the schedule

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described herein. The money in the QSF may be held in a high-yield, interest-bearing account

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and any interest earned on such account shall be used to pay the costs of administration of the

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QSF including the administrator’s fees.

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25.

Other than as required by the terms of this Decree, the EEOC retains

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discretion to determine who is an aggrieved individual for purposes of making a claim on the

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QSF and to determine the amount of any award issued from the QSF.

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VII.

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CLAIMS PROCESS
26.

Within thirty (30) days of the Effective Date, Defendants shall hire and

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appoint a specific professional individual or organization (“Claims Administrator”), approved by

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the EEOC, to oversee notice of the claims process and payments to claimants as designated by

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the EEOC. If the Claims Administrator initially appointed by Defendants thereafter declines to

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serve or to carry out its duties under this Decree, Defendants shall have fourteen (14) days to

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notify the EEOC in writing of the need for a replacement Claims Administrator and shall provide

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the EEOC with the name of a new Claims Administrator for approval by the EEOC.

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27.

Subject to the provisions of paragraph 24 above, Defendants shall pay all

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costs associated with the selection and retention of the Claims Administrator as well as the

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performance of the Claims Administrator’s duties under this Decree.

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CONSENT DECREE; ORDER

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28.

Within sixty (60) days of the Effective Date, each Defendant shall

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provide, to the extent such information is available, the Claims Administrator and the EEOC an

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Excel file containing the names of all individuals who sought employment for an Affected

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Position with such Defendant, but was not hired, at any time between January 1, 2010 and the

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Effective Date. For each individual identified, each Defendant shall provide, if known, the

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individual’s (a) last known address(es); (b) phone number(s); (c) email address(es); (d) Social

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Security Number; and (e) date of application.

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29.

Within thirty (30) days of receipt of a list from EEOC identifying Potential

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Claimants, the Claims Administrator shall send each identified individual a Notice informing

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them of the settlement and providing information about submitting a claim on the Settlement

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Fund. This Notice shall be drafted by the EEOC and provided to each Defendant in advance.

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30.

The Claims Administrator shall make diligent efforts to provide notice of

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the settlement to any individual whose Notice is returned as undeliverable, including the use of

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skip trace resources and additional mailing, to locate Potential Claimants and provide Notice.

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31.

Within sixty (60) days of the Effective Date, the Claims Administrator

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shall place notifications in online and print media sources, identified by the EEOC, publicizing

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the settlement and providing information about how to make a claim on the Settlement Fund.

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Publication shall run for a period of not more than 300 days, excluding Publication on any

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website established by the Claims Administrator for the purpose of publicizing and administering

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the settlement. The Publication shall be approved by the EEOC and provided to each Defendant

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in advance. With the e xception of Publication on any website established by the Claims

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Administrator, the notifications in online and print media sources shall include a statement to the

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effect that Defendants denied all allegations in the EEOC’s complaint.

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32.

Within sixty (60) days of the Effective Date, the Claims Administrator

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shall establish a website for the purposes of advertising the settlement, informing Potential

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Claimants of the process for making a claim on the settlement fund, and for submitting a claim

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on the Settlement Fund.

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CONSENT DECREE; ORDER

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33.

The Claims Administrator shall work with the EEOC to develop a

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Questionnaire for use by Potential Claimants for the purpose of submitting a claim on the QSF.

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The EEOC shall use the information provided on Questionnaires submitted by Potential

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Claimants, whose responses will be provided under oath and under penalty of perjury, to

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determine (a) whether the Potential Claimant is eligible to participate in the settlement (“Eligible

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Claimant”) because such individual was adversely affected by any Defendant’s recruiting and/or

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hiring practices, as alleged in EEOC’s Second Amended Complaint and (b) the amount of any

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settlement award, which shall be consistent with damages available under Title VII, as amended.

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The EEOC shall have full and complete discretion under the terms of this Decree to determine

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who is an Eligible Claimant and to determine the amount the settlement award, if any, to be

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provided to an Eligible Claimant. All awards shall be designated solely as compensatory

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damages.

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34.

EEOC shall provide the Claims Administrator and the Defendants with the

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names of Eligible Claimants, the amount of each Eligible Claimant’s settlement award by means

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of a “Distribution List.”

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35.

All awards shall be designated as solely as compensatory damages.

Within 180 days of the Effective Date, Defendants shall make an initial

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payment in the amount of $500,000 to the Qualified Settlement Fund so that EEOC may

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distribute payments to early identified claimants.

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36.

Within twelve (12) months of the Effective Date, Defendants shall make a

second payment of $250,000 to the Qualified Settlement Fund.
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Defendants shall have twenty-four (24) months from the Effective Date to

pay the remaining $1,250,000 to the Qualified Settlement Fund.
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Within fourteen (14) days of receipt of a Distribution List from EEOC, the

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Claims Administrator shall issue a check or checks, via first class mail, in the amount(s)

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designated by the EEOC to Eligible Claimants identified on the Distribution List who has

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executed a release of claims asserted in the EEOC’s lawsuit. All awards shall be designated

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solely as compensatory damages. This release is attached as Exhibit A. Copies of this

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correspondence shall simultaneously be provided to Anna Y. Park, Regional Attorney, U.S.

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CONSENT DECREE; ORDER

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Equal Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles,

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California 90012 and to each applicable Defendant in care of Fred W. Alvarez, Esq., Coblentz,

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Patch, Duffy & Bass, One Montgomery Street, Suite 300, San Francisco, CA 94104-5500. Each

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check will remain valid for 180 days. To the extent any check may need to be reissued, the

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EEOC will so notify the Claims Administrator.

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39.

At least every thirty (30) days after the Claims Administrator issues

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checks pursuant to the Distribution List(s) provided by the EEOC, the Claims Administrator

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shall identify any check(s) not negotiated and/or returned non-negotiated to enable the tracking

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of remaining funds. In the event there is a question regarding whether a check has been

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negotiated, the Parties and the Claims Administrator will work together to determine when

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payment was rendered, including obtaining a copy of the canceled check.

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40.

On a quarterly basis throughout the term of this Decree, the Claims

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Administrator will notify the EEOC and the Defendants of the remaining amount available in the

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Settlement Fund. The EEOC may issue additional Distribution Lists.

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41.

The Claims Administrator shall prepare and distribute 1099 reporting

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forms to each Eligible Claimant and shall make any appropriate reports for each to the Internal

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Revenue Service and other tax authorities. Defendants shall be solely responsible for any costs

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associated with the issuing and distributing 1099s to the Eligible Claimants. No withholdings

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shall be made as all payments to Eligible Claimants will be designated as compensatory

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damages. Within seven (7) day of the issuance of any 1099 form, the Claims Administrator shall

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provide a copy of the related correspondence to Anna Y. Park, Regional Attorney, U.S. Equal

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Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles,

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California 90012 and to the Defendants, through their counsel.

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42.

The EEOC shall issue a “Final Distribution List” that shall include the

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names of any additional Eligible Claimants and the amounts to be paid to such individuals. All

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amounts shall be designated compensatory damages. EEOC will issue the final Distribution List

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no later than ninety (90) days prior to the expiration of the Decree.

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CONSENT DECREE; ORDER

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43.

The EEOC’s Final Distribution List shall detail the amount(s) to be paid to

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each Eligible Claimant, and the name and address to which each Eligible Claimant’s portion and

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amount of monetary relief shall be delivered. All amounts shall be designated as compensatory

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damages.

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44.

Within sixty days (60) after issuance of payments according to the Final

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Distribution List, any remaining monies in the Settlement Fund shall be donated, in equal share,

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to the following organizations as cy pres: Asian Americans Advancing Justice, California Rural

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Legal Assistance Foundation, and the James Irvine Foundation.

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VIII. RELATIONSHIP TO STAFFING AGENCIES

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45.

Within thirty (30) days of the Effective Date, each Defendant shall provide

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the Monitor with a complete list of all Staffing Agencies used by such Defendant to provide

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workers for Affected Positions at any of such Defendant’s Subject Facilities. The list shall

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contain the name of the Staffing Agency, the address of its headquarters, and the addresses of

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any Subject Facility of a Defendant for which each Staffing Agency provides workers for

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Affected Positions.

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46.

If, at any time during the duration of the Decree, any Defendant terminates

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its relationship with any previously-identified Staffing Agency, such Defendant shall notify the

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Monitor within thirty (30) days of the decision to terminate that relationship.

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47.

If, at any time during the duration of the Decree, any Defendant engages a

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Staffing Agency not previously identified, or elects to use a Staffing Agency for a facility not

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previously identified, such Defendant shall notify the Monitor within thirty (30) days, including

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providing the name of the Staffing Agency, the business address of its headquarters, and the

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location(s) for which the Staffing Agency has been engaged to provide workers for Affected

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Positions at a Subject Facility.

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48.

Within forty-five (45) days of the Effective Date, each Defendant with

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workers in the Affected Positions at Subject Facilities shall send a letter to each Staffing Agency

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identified pursuant to Paragraph 45, above. This letter, which shall be signed by each

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Defendant’s President, shall (a) state the Defendant’s commitment to a referral and selection

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CONSENT DECREE; ORDER

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process free from unlawful discrimination and which encourages the referral of a racially and

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ethnically diverse workforce; (b) express the Defendant’s expectation that the Staffing Agency

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will refer and place workers for Affected Positions at a Subject Facility of Such Defendant

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without regard to race and/or national origin; (c) indicate that, if the Staffing Agency fails to

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provide such Defendant with a pool of referrals that is at least 20% non-Hispanic, such

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Defendant may terminate the relationship with that Staffing Agency; and (d) explain that, unless

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a specific job description states that the ability to speak Spanish is a job requirement, the Staffing

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Agency should not assume that that workers for Affected Positions at a Subject Facility need to

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speak Spanish in order to work in such Defendant’s Subject Facility. Each Defendant shall

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enclose with the letter an acknowledgement form to be signed by the Staffing Agency and

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returned to such Defendant within seven (7) days. If, at any time during the duration of the

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Decree, any Defendant elects to use additional Staffing Agencies, such Defendant shall send

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such a letter and acknowledgement form to each additional Staffing Agency upon

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commencement of Defendant’s relationship with the Staffing Agency.

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49.

For the duration of the Decree, each Defendant shall require, as a

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condition of doing business at a Subject Facility, that every Staffing Agency with which it

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contracts for Affected Positions maintain and provide a list to the Monitor of all individuals

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referred or placed by the Staffing Agency at any Subject Facility of a Defendant, including the

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individual’s (a) name, (b) date of birth, (c) starting date with such Defendant, (d) ending date

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with such Defendant, (e) position, (f) race (if known), and (g) national origin (if known).

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50.

For the duration of the Decree, each Defendant shall require, as a

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condition of doing business at a Subject Facility, that every Staffing Agency with which it

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contracts for Affected Positions maintain and provide data describing, for each such Defendant’s

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requests for workers for Affected Positions at a Subject Facility, the Staffing Agency’s available

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labor pool based on the Defendant’s wage rates and the nature of the work to be performed

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(including the total number of individuals available to perform that work) and the percentage of

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that labor pool that identifies as non-Hispanic.

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CONSENT DECREE; ORDER

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51.

Each Defendant shall require, as a condition of doing business at a Subject

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Facility, that the Staffing Agency(ies) provide the information described in Paragraphs 49 and

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50, above, to the Monitor on a quarterly basis for the duration of the Decree.

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52.

No Defendant shall do business at a Subject Facility with any Staffing

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Agency that fails to comply with the requirements of Paragraphs 49-51, above, during the

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duration of the Decree.

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53.

For the duration of the Decree, all requests to Staffing Agencies for

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workers in the Affected Positions at Subject Facilities shall be made in writing and shall include

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(a) job title; (b) a written description of duties for the available position(s); (c) a statement

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reminding the Staffing Agency of the Defendant’s commitment to a referral and selection

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process free from unlawful discrimination and which encourages the referral of a racially and

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ethnically diverse workforce; and (d) the name and job title of the individual submitting the

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request. These requests, and all subsequent correspondence between a Defendant and the

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Staffing Agency concerning each such request, shall be maintained for the duration of the Decree

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and provided to the Monitor on a quarterly basis.

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54.

Each Defendant shall require its employees and agents with responsibility

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for communicating with Staffing Agencies to sign a written verification, confirming their

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understanding of the requirements of Paragraph 53, above. These verifications shall be signed

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within ninety (90) days of the Effective Date, or within ten (10) days of the date of hire in the

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case of new employees. Copies of these verifications shall be provided to the Monitor on a

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quarterly basis.

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55.

Should the Monitor, pursuant to Paragraph 8, above, determine that

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Merchandisers and/or Order Pickers are among the Affected Positions, any Defendant with

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Merchandisers and/or Order Pickers working at or out of a Subject Facility shall have an

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additional thirty (30) days to comply with any obligation related solely to that determination,

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including but not limited to the obligations described in Paragraphs 28, 45 and 48, above.

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CONSENT DECREE; ORDER

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IX.

HIRING GOALS

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56.

Each Defendant shall use Best Efforts to obtain workers such that the

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percentage of non-Hispanic workers in the Affected Positions in the Subject Facilities placed by

4

Staffing Agencies or hired by a Defendant equals 20% (“Hiring Goals”).

5

57.

If, after the first year of the Decree, the Monitor concludes that any

6

Defendant has used Best Efforts to obtain the Hiring Goals, the Monitor may modify the Hiring

7

Goal for that remainder of the term of the Decree for that Defendant such that the Defendant will

8

be required to use Best Efforts to obtain workers in the Affected Positions in the Subject

9

Facilities such that the percentage of non-Hispanic workers placed or hired into those positions

10

equals the percentage of non-Hispanic workers available for such positions at the Subject

11

Facilities as indicated by the Staffing Agencies. The Monitor shall notify EEOC of any

12

modification of the Hiring Goal, for any Defendant, within fourteen (14) months of the Effective

13

Date.

14

58.

The Hiring Goals described herein shall be communicated by each

15

Defendant to all of its employees and agents with responsibility for hiring for the Affected

16

Positions at Subject Facilities and/or communicating with Staffing Agencies regarding the

17

Affected Positions at Subject Facilities, including the highest-ranking manager in each Subject

18

Facility.

19

X.

20

TRACKING OF APPLICANT INQUIRIES, PLACEMENTS BY STAFFING
AGENCIES & HIRING FOR AFFECTED POSITIONS

21

59.

Defendants have stated that they intend to hire for the Affected Positions

22

at the Subject Facilities solely through Staffing Agencies. For the duration of the Decree, and

23

except in unusual, urgent circumstances, all Defendants’ sole source of workers for the Affected

24

Positions at any Subject Facility shall be the Staffing Agencies identified to the Monitor pursuant

25

to the procedures described in Paragraphs 45-47, above. A Defendant shall report any unusual,

26

urgent circumstances that cause it to deviate from this procedure to the Monitor within seven (7)

27

days.

28

14
CONSENT DECREE; ORDER

1

60.

Each Defendant shall adopt a policy prohibiting word-of-mouth hiring for

2

Affected Positions at the Subject Facilities and shall inform its employees that individuals

3

interested in work with that Defendant for such positions shall register with the appropriate

4

Staffing Agency(ies).

5

61.

In the event that individuals come to the place(s) of business of any

6

Defendant to seek employment opportunities in the Affected Positions at the Subject Facilities

7

during the term of the Decree, such Defendant shall inform the individual that such Defendant

8

hires for such positions exclusively through Staffing Agencies and direct the individual to the

9

appropriate Staffing Agency.

10

62.

Each Defendant shall maintain a record of every individual who is referred

11

to or placed by a Staffing Agency for work in an Affected Position in a Subject Facility of such

12

Defendant. This record shall be maintained in electronic format using a program capable of

13

export to an Excel file. For every individual, this record shall include: (a) the individual’s name,

14

(b) the individual’s date of birth, (c) the individual’s apparent national origin, (d) the individuals’

15

apparent race, (e) the individual’s address, (f) the position for which the individual was placed,

16

(g) the facility at which the individual worked, (h) the Staffing Agency that placed or referred the

17

worker, (i) the individual’s start date, (j) the individual’s end date (if applicable), and (k) the date

18

on which the individual was transferred to such Defendant’s own payroll (if applicable).

19

63.

Each Defendant shall maintain a record of every individual who is hired

20

for Affected Position work in such Defendant’s Subject Facilities for the duration of the Decree.

21

This record shall be maintained in electronic format using a program capable of export to an

22

Excel file. For every individual, this record shall include: (a) the individual’s name, (b) the

23

individual’s date of birth, (c) the individual’s national origin, (d) the individual’s race, (e) the

24

individual’s address, (f) the position for which the individual was hired, (g) the Subject Facility

25

at which the individual was hired, (h) the Staffing Agency that originally placed or referred the

26

worker, (i) the individual’s start date on the Defendant’s payroll, and (j) the individual’s end date

27

(if applicable).

28

15
CONSENT DECREE; ORDER

1

64.

All Defendants shall request that direct hires into Affected Positions at

2

Subject Facilities self-identify their race and national origin. If an individual declines to self-

3

identify, a Defendant shall, through reasonable efforts, identify the individual’s race and/or

4

national origin and note the method used to make the identification (e.g., visual observation).

5
6

65.

The records created pursuant to Paragraphs 62 and 63, above, shall be

maintained for the duration of the Decree and provided on a quarterly basis to the Monitor.

7

66.

Each Defendant shall require all its employees and agents with

8

responsibility for effectuating any or all of the provisions of the Decree described in Paragraphs

9

59 – 64, above, to acknowledge their understanding of these requirements and their commitment

10

to compliance.

11

XI.

12
13

COMPLAINTS CONCERNING DISCRIMINATION ON THE BASIS OF RACE
AND/OR NATIONAL ORIGIN
67.

For the duration of the Decree, each Defendant shall maintain a

14

centralized, written record of any and all complaints regarding hiring discrimination into

15

Affected Positions at a Subject Facility on the basis of race and/or national origin. This written

16

record shall contain, for each complaint, (a) the name of the individual making the complaint;

17

(b) the individual’s contact information; (c) the individual’s relationship to any Defendant (e.g.,

18

applicant); (d) the date on which the complaint was made; (e) the location where the complained-

19

of conduct occurred; (f) a summary of the complaint (including the identify of all individuals

20

involved); (g) the name and title of the employee receiving the complaint; (h) a summary of any

21

investigation undertaken by any Defendant into the complaint; and (i) a summary of the outcome

22

of the complaint.

23

68.

Each Defendant shall retain any non-privileged documents or other

24

materials created as part of such Defendant’s receipt, investigation, and/or resolution of all such

25

complaints concerning race and/or national origin discrimination for the duration of the Decree.

26
27

69.

The non-privileged documents described in Paragraphs 67 and 68, above,

shall be provided to the Monitor on a quarterly basis.

28

16
CONSENT DECREE; ORDER

1

XII.

2

TRAINING
70.

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

3

provide live training to all of its employees who have any responsibility for hiring for the

4

Affected Positions at Subject Facilities, managing and/or supervising individuals in the Affected

5

Positions at Subject Facilities, for communicating with Staffing Agencies regarding acquiring

6

workers in the Affected Positions at Subject Facilities, or regarding any matter subject to this

7

Decree, or for compliance with any of the terms of this Decree. The training shall cover:

8

(a) Title VII’s prohibition of race and national origin discrimination in hiring and retaliation;

9

(b) ensuring that recruitment, hiring and worker selection is done without discrimination on the

10

basis of race or national origin; (c) communicating with Staffing Agencies regarding its

11

commitment to non-discriminatory hiring and to providing clear and accurate information about

12

Affected Position job requirements and qualifications at its Subject Facilities; (d) Defendant’s

13

record-keeping obligations under Title VII and the terms of the Decree; (e) proper handling of

14

complaints of race and national origin discrimination from applicants, workers, and employees;

15

(f) how to prevent race and national origin discrimination and retaliation and (g) effectuating the

16

provisions of the Consent Decree. Each Defendant’s President shall be present for this training

17

and will emphasize the Defendant’s commitment to providing equal employment opportunity to

18

all individuals regardless of race or national origin. This training may be recorded for future use.

19

The training shall be provided at each Defendant’s expense by a third-party trainer approved by

20

EEOC.

21

71.

Within ninety (90) days of the Effective Date, and annually, for the

22

duration of the Decree, each Defendant shall provide a live and interactive training of not less

23

than one (1) hour in duration to all employees. The training shall cover: (a) Title VII’s

24

prohibition of race and national origin discrimination and retaliation; (b) ensuring that

25

recruitment, hiring and worker selection is done without discrimination on the basis of race or

26

national origin; (c) how to prevent race and national origin discrimination (including how to

27

prevent harassment); and (d) Defendant’s employment policies and procedures. This training

28

17
CONSENT DECREE; ORDER

1

may be recorded for future use. In any facility with fewer than fifteen (15) employees, a

2

Defendant may use previously-recorded training to fulfill its obligation under this paragraph.

3

72.

Should any Defendant hire any individual with primary responsibility for

4

hiring for Affected Positions at a Subject Facility, communicating with Staffing Agencies,

5

supervising individuals in the Affected Positions at a Subject Facility, or compliance with this

6

Decree during the term of the Decree, or newly assign any employee those such responsibilities,

7

such Defendant shall provide the training described in Paragraph 70, above, to that individual

8

within thirty (30) days of the date of the individual’s hire or assignment. Each Defendant may

9

provide live training or show the recorded training to fulfill its obligations under this section of

10

the Decree.

11

73.

All persons required to attend the trainings described in Paragraphs 70 and

12

71, above, shall verify their attendance in writing. Within fifteen (15) days of all training

13

required under this Decree, each Defendant shall provide the Monitor with a document

14

identifying (a) the nature of the training; (b) the date and location of the training; (c) the

15

individual(s) who provided the training; (d) the names of all persons who attended the training;

16

and (e) copies of the written verifications signed by the training’s attendants.

17

XIII. DECREE COMPLIANCE MONITOR

18

74.

Within thirty (30) days of the Effective Date, the Defendants, collectively,

19

shall retain Patricia K. Gillette, Esq. as a third-party Decree Compliance Monitor (“the

20

Monitor”). The Monitor shall monitor each Defendants’ compliance with the provisions of this

21

Decree.

22
23

75.

The Monitor’s specific duties shall include:
a.

Conducting an initial review of each Defendant’s operations and

24

hiring practices with respect to the Affected Positions for the

25

purpose of fulfilling the Monitor’s responsibilities under the

26

Decree, as described in Paragraph 76, below.

27

b.

28

Compiling data for and preparing Annual Reports as described in
Paragraph 83, below;

18
CONSENT DECREE; ORDER

1

c.

Quarterly review and monitoring of each Defendants’

2

communications with Staffing Agencies regarding Affected

3

Positions at the Subject Facilities;

4

d.

Quarterly review and monitoring of each Defendant’s hiring

5

practices as required by this Decree, including placement by

6

Staffing Agencies of individuals into the Affected Positions at

7

Subject Facilities; the conversion of individuals in the Affected

8

Positions at a Subject Facility onto a Defendant’s payroll;

9

compliance with the hiring and recordkeeping policies described in

10

this Decree;

11

e.

Review and evaluation of each Defendant’s use of Best Efforts (as

12

defined in Paragraph 12 above) to achieve the Hiring Goals

13

described in the Decree;

14

f.

15

Review of data from Staffing Agencies regarding available
workers for the Affected Positions at Subject Facilities;

16

g.

17

Determination of which facilities, pursuant to Paragraph 13, above,
shall be included among the Subject Facilities; and

18

h.

Review of any and all complaints received by any Defendant or

19

any Staffing Agency concerning any Defendant’s hiring practices

20

for Affected Positions at a Subject Facility.

21

76.

Within sixty (60) days of the Effective Date, the Monitor shall complete

22

an initial review of the operations and hiring practices as related to the Affected Positions of each

23

Defendant that employs workers in the Affected Positions. This review shall provide the

24

Monitor an understanding of each such Defendant’s policies and practices as they relate to

25

recruitment and hiring for individuals in Affected Positions (including identifying the individual

26

employees responsible for such tasks); policies and practices as they relate to communications

27

with Staffing Agencies that supply workers for Affected Positions (including identifying the

28

individual employees responsible for such tasks); the Staffing Agencies used for supplying

19
CONSENT DECREE; ORDER

1

workers for Affected Positions; current staffing levels in Affected Positions (including workers

2

on a Defendant’s payroll and workers on a Staffing Agency’s payroll); workforce demographics

3

with respect to Affected Positions; and the information needed to determine whether

4

Merchandisers and/or Order Pickers constitute Affected Positions as described in Paragraph 9.

5
6
7

77.

Defendants shall bear all costs associated with the selection and retention

of the Monitor and the performance of his/her duties.
78.

Each Defendant shall permit the Monitor full and complete access to all

8

employment records; communications with applicants; communications with Staffing Agencies

9

and other third-party labor sources (including requests for labor and billing records); payroll

10

records; tracking information as described in Paragraphs 62 – 63, above; EEO-1 Reports; worker

11

and applicant race-identification data; equal employment opportunity training records and

12

materials; Defendants’ personnel; and Defendants’ facilities, all of the foregoing as needed, to

13

effectuate the Monitor’s responsibilities as described by this Decree.

14

79.

If, at any time during the duration of the Decree, the Monitor becomes

15

unable or unwilling to continue as Monitor, Defendants shall have sixty (60) days to select a new

16

monitor. The Monitor shall have demonstrated experience in the areas of race and national

17

origin discrimination, including issues related to recruitment and hiring. Selection of the

18

Monitor shall be subject to EEOC’s approval.

19

XIV. REPORTING REQUIREMENTS

20

80.

Annually, for the duration of the Decree, each non-MBI Defendant shall

21

provide EEOC with a report identifying for each facility operated by that Defendant the total

22

number of individuals working in that facility and the total number of individuals, by sex and

23

race, employed in each of the following job categories: (a) executive/senior officials and

24

managers; (b) first/mid officials and managers; (c) professionals; (d) technicians; (e) sales

25

workers; (f) administrative support; (g) craft workers; (h) operatives; (i) laborers and helpers;

26

and (j) service workers. For purposes of this report, each Defendant shall use the job and race

27

categories used in Employer Information (“EEO-1”) Reports. Reports required pursuant to this

28

paragraph shall be submitted directly to Anna Y. Park, Regional Attorney, Equal Employment

20
CONSENT DECREE; ORDER

1

Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, California 90012 and

2

[e-mail].

3
4
5
6
7
8

81.

Defendants, through the Monitor, shall provide an Annual Report to

EEOC throughout the duration of the Decree.
82.

The first Annual Report shall be due twelve months from the Effective

Date of the Decree.
83.

Each Annual Report shall contain the following:
a.

9

Verification that all training required under the Decree in the
previous twelve months has occurred, including copies of the

10

materials referenced in Paragraph 73, above, and copies of any

11

materials used (including, for example, presentation slides) or

12

distributed during the training;

13

b.

14
15

previous twelve months;
c.

16
17

Confirmation that the Notice described in Paragraph 92 has been
posted in conspicuous locations during the previous year;

d.

18
19

Copies of any EEO-1 Reports filed by any Defendant during the

Copies of all verifications required by this Decree (Paragraphs 48,
54, 66, and 73);

e.

A list of all Staffing Agencies used by each Defendant for Affected

20

Positions at Subject Facilities, including the business address for

21

each Staffing Agency’s headquarters and the specific facilities of

22

each Defendant that each Staffing Agency serves;

23

f.

24
25

Agencies as described in Paragraph 48;
g.

26
27

A copy of the letter sent by each Defendant to all Staffing

A copy of all acknowledgments provided by Staffing Agencies in
response to the letter described in Paragraph 48;

h.

28

A list of any Staffing Agencies whose services were terminated by
a Defendant pursuant to the provisions of this Decree;

21
CONSENT DECREE; ORDER

1

i.

An analysis of each Defendant’s Best Efforts (as defined in

2

Paragraph 12) to achieve the Hiring Goals including a summary of

3

good faith efforts undertaken by a Defendant to achieve the Hiring

4

Goal; a reporting of the total number of individuals placed by

5

Staffing Agencies in the previous year for work in the Affected

6

Positions at a Subject Facility with each Defendant and the

7

percentage of those individuals who are non-Hispanic; a reporting

8

of the Staffing Agencies’ available workforce for the Affected

9

Positions at the Subject Facilities and the percentage that is non-

10

Hispanic; and a reporting of the total number of individuals hired

11

into the Affected Positions at Subject Facilities by each Defendant

12

and the percentage of those individuals who are non-Hispanic;

13

j.

The total number of workers, by facility, who were either placed

14

by a Staffing Agency or hired directly by any Defendant into the

15

Affected Positions in any Subject Facility in the previous year and

16

the race of those individuals; and

17

k.

A summary of any and all complaints concerning hiring

18

discrimination in Affected Positions at a Subject Facility on the

19

basis of race and/or national origin and the response by any

20

Defendant to those complaints;

21

84.

The Annual Report shall be signed, and its contents verified, by the

22

Monitor and a representative of each Defendant, as to information provided by that Defendant.

23

XVI. DISPUTE RESOLUTION & COMPLIANCE REVIEW

24

85.

The Parties agree that if the Commission has reason to believe that any

25

Defendant has failed to comply with any provision of this Decree, the Commission may bring an

26

action in court to enforce the Decree. Nothing in this Decree prevents a Defendant from

27

petitioning the court to enforce the terms of this Decree, provided it provides thirty (30) days’

28

22
CONSENT DECREE; ORDER

1

prior written notice to EEOC, including twenty-one (21) days from the date of the written notice

2

to attempt to resolve the issue.

3

86.

EEOC agrees that, prior to initiating any such action, it will attempt to

4

obtain voluntary compliance with the Decree. Any such attempt shall be made by notifying the

5

Defendant, through its counsel of record, in writing, of the nature of the dispute. This notice

6

shall specify the particular provision(s) that the EEOC believes has been breached. That

7

Defendant shall have twenty-one (21) days from the date of the written notice to attempt to

8

resolve or cure the breach. The Parties may extend this period upon mutual consent.

9

87.

After thirty (30) days, inclusive of the twenty-one (21) days referenced in

10

the preceding paragraph, have passed from the written notice described above with no resolution

11

or agreement to extend the time, EEOC may petition the court for resolution of the dispute,

12

seeking all available relief, including an extension of the term of the Decree, and/or any other

13

relief that the Court may deem appropriate.

14

88.

In the event of non-payment of any of the amounts required under the

15

Decree, EEOC may, after giving ten (10) days’ notice to Defendants, petition the Court for

16

resolution of the dispute without adhering the provisions described in Paragraphs 86 – 87, above.

17
18
19

89.

Jurisdiction to resolve any dispute arising under this Decree resides in the

United States District Court for the Eastern District of California.
90.

EEOC may request, from the Monitor, a copy of any document received or

20

created by the Monitor as a result of the Monitor’s duties as described in this Decree, with the

21

exception of correspondence between the Monitor and any Defendant.

22

91.

No provision of this Decree shall be construed to limit or impair, in any

23

manner, any other authority granted by law or regulation to the Commission to conduct

24

investigations of a Defendant, including, but not limited to, investigating charge of

25

discrimination filed under Title VII of the Civil Rights Act of 1964, the Equal Pay Act (“EPA”),

26

the Age Discrimination in Employment Act (“ADEA”), Title I or V of the Americans with

27

Disabilities Act, the Genetic Information Nondiscrimination Act of 2008, and any statute over

28

which the Commission is given jurisdiction in the future, and conducting directed investigations

23
CONSENT DECREE; ORDER

1

authorized under the EPA, the ADEA, and any future statute that authorizes directed

2

investigations.

3

XVII. NOTICE

4

92.

Within ten (10) days of the Effective Date and throughout the term of the

5

Decree, each Defendant shall post the notice attached to this Decree as Exhibit B, in a clearly

6

visible location frequented by employees at each Defendant’s location(s) with Affected

7

Positions.

8
9

93.

Within ten (10) days of the Effective Date and throughout the term of the

Decree, each Defendant shall post a statement on its website, to the extent it maintains one

10

(including, without limitation, www.marquezbrothers.com and elmexicano.net), confirming its

11

commitment to equal employment opportunity and to hiring without regard to race or national

12

origin.

13

XVIII. MISCELLANEOUS

14
15

94.

Each Party shall bear its own attorneys’ fees and costs incurred in

connection with this action.

16

95.

During the duration of the Decree, a Defendant shall provide any potential

17

successor-in-interest with a copy of this Decree within a reasonable time of not less than thirty

18

(30) days prior to the execution of any agreement for acquisition or assumption of control of any

19

or all of that Defendants’ facilities and/or business, or any other material change in corporate

20

structure. A Defendant shall simultaneously inform the EEOC of any such agreement for

21

acquisition, assumption of control, or other material change in corporate structure.

22

96.

Unless otherwise stated, all notices, reports and correspondence required

23

under this Decree shall be delivered to the attention of Anna Y. Park, Regional Attorney, U.S.

24

Equal Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles,

25

California, 90012 and [e-mail].

26

///

27

///

28

///

24
CONSENT DECREE; ORDER

1
2

All Parties, through the undersigned, respectfully apply for and consent to the entry of
this Consent Decree Order.

3

Respectfully Submitted,

4

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION

5
6
7

Date:

By:
Anna Y. Park
Regional Attorney
For Plaintiff EEOC

8
9
10
11

Date:

By:
Fred W. Alvarez, Esq.
Coblentz, Patch, Duffy & Bass
One Montgomery Street, Suite 300
San Francisco, CA 94104-5500
Attorneys for Defendants
Marquez Brothers International, Inc.
Marquez Brothers Enterprises, Inc.
Marquez Brothers Foods, Inc.
Marquez Brothers Nevada, Inc. and
Marquez Brothers Texas I, Inc.

12
13
14
15
16
17
18

ORDER1

19

The provisions of the foregoing Consent Decree are hereby approved and compliance

20
21
22
23

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.

24
Dated: September 17, 2019
25

SENIOR DISTRICT JUDGE

26
27
28

1

The Court notes that the parties submitted a signed proposed consent decree at Doc. No. 143-1. Further, the
Exhibit A referenced in Paragraph 38 and Exhibit B referenced in Paragraph 92 are found in the docket at Doc. Nos.
143-2 and 143-3, respectively.

25
CONSENT DECREE; ORDER

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
28

26
CONSENT DECREE; ORDER