U.S. Equal Employment Opportunity Commission v. Kobra Associates, Inc. d/b/a Jack in the Box

Filing 20

STIPULATION and ORDER TO REOPEN CASE AND STAY ACTION FOR SIXTY DAYS signed by Judge Morrison C. England, Jr on 6/4/10. (Mena-Sanchez, L)

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William R. Tamayo, SBN 084965 David Offen-Brown, SBN 063321 Dana C. Johnson, SBN 187341 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 350 The Embarcadero, Suite 500 San Francisco, CA 94105-1260 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Plaintiff EEOC

Jeffrey S. Bosley, SBN 167629 E-mail: [e-mail] Richard A. Lapping, SBN 107496 9 E-mail: [e-mail] WINSTON & STRAWN LLP 10 101 California Street San Francisco, CA 94111-5802 11 Telephone: [phone] Facsimile: [phone]
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Attorneys for the Duly Appointed Chapter 11 Trustee of Defendant and Debtor Kobra Associates, Inc., 14 Beverly N. McFarland
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:09-CV-03546-MCE-JFM STIPULATION AND ORDER TO REOPEN CASE AND STAY ACTION FOR SIXTY DAYS

U.S. EQUAL EMPLOYMENT 20 OPPORTUNITY COMMISSION,
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Plaintiff, vs.

KOBRA ASSOCIATES, INC. d/b/a 25 JACK IN THE BOX,
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Defendant.

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INTRODUCTION On December 22, 2009, Plaintiff U.S. Equal Employment Opportunity Commission ("EEOC"), filed suit against Defendant Kobra Associates, Inc. ("Defendant"), alleging that Defendant permitted a sexually harassing environment to develop in its Paradise, California store, in violation of Title VII of the Civil Rights Act of 1964, as amended. 43 U.S.C. § 2000e et seq. The EEOC's complaint contained a request for a jury trial, and a prayer for both monetary damages and non-monetary injunctive relief. After filing its complaint in the District Court, the EEOC filed a proof of claim in an estimated amount of $930,000.00 with the bankruptcy court in which Defendant had filed for bankruptcy protection.1 The EEOC's monetary claim is contingent and unliquidated. The EEOC believes that, absent a stipulation of the parties on liability, the appropriate mechanism to remove the contingency and liquidate the claim is through a jury finding of liability for the sexually hostile environment and an award of damages in a specific amount; the duly appointed Chapter 11 Trustee for Defendant debtor disagrees such relief is required before the EEOC's monetary claims can be liquidated. On May 13, 2010, the EEOC filed a consent decree with the Court in which the purchaser of Defendant's Paradise, California store, TBS Foods, agreed to perform certain acts over the next two years satisfying the EEOC's prayer for nonmonetary injunctive relief. (Docket No. 15) This Court signed the Consent Decree on May 18, 2010. (Docket No. 17) It concurrently ordered the entire action to be dismissed with prejudice, notwithstanding that the consent decree expressly resolved only the non-monetary injunctive claim and did not address the issue of

In re Kobra Associates, Inc., Case No. 09-40068, filed in the Bankruptcy Court for the Eastern District of California, Sacramento Division, subsequently consolidated with three related cases to be jointly administered in the same venue 28 as In re Food Services Management, et al., Case No. 09-40066.
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Defendant's liability or the EEOC's monetary claim against it. (See Docket No. 17, 2:18-24). The EEOC and Defendant, through its duly appointed Chapter 11 Trustee, (collectively, the "Parties") hereby stipulate as follows: WHEREAS, this Court's dismissal of the above-captioned lawsuit with prejudice in its entirety deprives the EEOC of the mechanism it seeks by which liability and monetary damages on its claim may be determined; WHEREAS, the Parties believe that events expected to take place in the bankruptcy court proceeding within the next sixty days may further a mutually agreeable resolution of the above-captioned action; THEREFORE, the Parties stipulate and respectfully request that this Court, pursuant to Federal Rules of Civil Procedure 60(a), (b)(1) or (b)(6), issue an Order reversing its dismissal of the above-captioned action with prejudice as to the issues of liability and monetary damages, and Order that the action be reinstated; and FURTHERMORE, the parties stipulate and respectfully request that this Court stay all proceedings in this matter for sixty (60) days from entry of this Order, including Defendant's motion to dismiss (Docket No. 6). Respectfully submitted, Dated: June 2, 2010 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION By: /s/ Dana C. Johnson

Attorney for Plaintiff EEOC Dated: June 1, 2010 WINSTON & STRAWN LLP

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By: /s/ as authorized by Jeffrey Bosley on 6/1/10) Jeffrey S. Bosley Attorney for the Duly Appointed Chapter 11 Trustee of Defendant Kobra Associates, Inc., Beverly N. McFarland

IT IS SO ORDERED. Dated: 06/04/2010
__________________________________ MORRISON C. ENGLAND, JR UNITED STATES DISTRICT JUDGE

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