Equal Employment Opportunity Commission v. ABM Industries Inc.

Filing 122

ORDER RE CONSENT DECREE. Signed by Magistrate Judge Bernard Zimmerman on 9/13/2011. (bzsec, COURT STAFF) (Filed on 9/14/2011)

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WILLIAM R. TAMAYO (SB# 084965) (CA)
JONATHAN T. PECK, (SB# 12303 (VA)
DAVID F. OFFEN-BROWN (SB #63321) (CA)
CINDY O’HARA (SB# 114555) (CA)
DEBRA SMITH (SB# 147863) (CA)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
San Francisco District Office
350 The Embarcadero, Suite 500
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Plaintiff,

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Case No. CV9-4593 BZ
CONSENT DECREE

v.
ABM INDUSTRIES INC.,
Defendant.

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Plaintiff Equal Employment Opportunity Commission (“Commission”) filed this action

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under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct

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alleged unlawful employment practices on the basis of discrimination based on race/national origin

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and retaliation, and to provide appropriate relief to Salvador Gallardo, Franklin Colindres, Jose

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Tasayco, Jose Heyliger, Marta Gomez, Ramona Hernandez and Daniel Rodas, and similarly situated

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Hispanics whom the Commission alleged were adversely affected by such practices. The

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Commission alleged that Defendant ABM Industries Incorporated subjected Salvador Gallardo,

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Franklin Colindres, Jose Tasayco, Jose Heyliger, Marta Gomez, Ramona Hernandez and Daniel

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Rodas, and similarly situated Hispanics to unlawful discrimination based on their race/national

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origin in violation of Title VII, and subjected Marta Gomez, Ramona Hernandez, Daniel Rodas and

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Salvador Gallardo to retaliation for opposing that discrimination and filing charges with the

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Commission. Defendant has denied the above allegations and further claimed that the correct
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employer of the named charging parties and similarly situated Hispanic janitors covered by the SEIU

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Local 87 collective bargaining agreement was ABM Janitorial Services—Northern California and/or

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its successor company ABM Services, Inc. The Commission and Defendant ABM Industries

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Incorporated, ABM Janitorial Services—Northern California and its successor company ABM

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Services, Inc. (collectively ABM) now seek to resolve this action as to each other and as to Salvador

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Gallardo, Franklin Colindres, Jose Tasayco, Jose Heyliger, Marta Gomez, Ramona Hernandez and

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Daniel Rodas, (“Charging Parties”) and similarly situated Hispanics, without further contested

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litigation through the instant Consent Decree. This resolution does not constitute an admission of

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liability on the part of ABM, nor constitute a finding on the allegations stated in the Commission’s

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Complaint, nor does it in any way supersede, amend, or otherwise change the collective bargaining

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agreement between Service Employees International Union (SEIU) Local 87 and the San Francisco

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Maintenance Contractors’ Association.

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The Court has reviewed this Consent Decree in light of the pleadings, the record herein, and
the applicable law, and now approves this Consent Decree.

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THEREFORE IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
GENERAL PROVISIONS
1.

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Court retains jurisdiction over this Consent Decree during its term.
2.

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This Court has jurisdiction over the subject matter and the parties to this action. This

This Consent Decree constitutes a full and final resolution of the Commission’s

claims against ABM in this action.

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3.

This Consent Decree will become effective upon its entry by the Court.

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4.

This Consent Decree is final and binding upon the parties to it, their successors and

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assigns.
5.

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The Commission and ABM will each bear its own costs and attorneys fees in this

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action.

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GENERAL INJUNCTIVE RELIEF

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ABM and its current officers, managers, supervisors, agents, employees, and all

persons in active concert or participation with them are enjoined from discriminating based on
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race/national origin including permitting the existence of a work environment that is hostile to

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employees because of their race/national origin, as prohibited under Title VII.

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ABM and its current officers, managers, supervisors, agents, employees, and all

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persons in active concert or participation with them are enjoined from engaging in, implementing or

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permitting any action, policy or practice which retaliates against Charging Parties, or any other

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individual, for having testified or participated in any manner in the Commission’s investigation and

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the proceedings in this case.

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SPECIAL INJUNCTIVE RELIEF

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Training
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During the term of this decree, ABM will conduct anti-discrimination/diversity

trainings and education within the jurisdiction covered by SEIU Local 87 as follows:

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(a)

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on workplace diversity, their rights to a workplace free from discrimination and retaliation,

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and their obligations not to harass or otherwise discriminate based on race/national origin;

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(b)

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discrimination and their obligations not to discriminate, harass or retaliate on the basis of

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race/national origin; their obligations to provide employees with a workplace free from

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discrimination and harassment on the basis of race/national origin and retaliation; and on

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their responsibilities and obligations if an employee complains to them about discrimination

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or harassment on the basis of race/national origin or retaliation, or if they observe

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discrimination or harassment on the basis of race/national origin or retaliation;

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(c)

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employee complaints of discrimination on the basis of race/national origin or retaliation; how

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to investigate complaints of discrimination on the basis of race/national origin or retaliation;

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how to institute policies, practices and training which will serve to correct the effects of past

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discrimination on the basis of race/national origin or retaliation and prevent future

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discrimination on the basis of race/national origin and retaliation, and promote acceptance of

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diversity in the workplace.

Provide an annual notice in English, Arabic, Chinese and Spanish, to all employees

Annual training of all supervisors and forepersons on workplace diversity and anti-

Two hour refresher training of all human resources personnel on how to deal with

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The initial distribution of the notice specified in Paragraph 8(a) above, and the initial training

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specified in Paragraphs 8(b) above will take place within sixty (60) days of the entry of this decree.

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The refresher training specified in Paragraph 8(c) above will take place during the term of this

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Consent Decree.

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Policy Enforcement

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ABM will consistently enforce its policy regarding materials discarded by building

tenants within the jurisdiction covered by SEIU Local 87.

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Posting

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10.

In the interest of preventing future discrimination based on race/national origin, ABM

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will prepare and post the following at each worksite within the jurisdiction covered by SEIU Local

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87 in a location accessible to all employees:

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(a)

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temporary employee can achieve a permanent assignment. ABM will also provide these

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procedures to all new hires in its new hire information packet.

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(b)

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areas to which they are assigned. This list will be updated whenever an individual achieves

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permanent status in a building. This list will include individuals who are permanently

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assigned to a building but are on temporary assignment elsewhere, or on any form of leave of

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absence.

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(c)

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SEIU Local 87.

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11.

The procedures found in the collective bargaining agreement through which a

A list of all permanent employees in the building, their seniority date, and the work

A notice that any questions regarding temporary assignment should be directed to

ABM will post a Notice to Employees in all workplaces covered by SEIU Local 87,

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subject to approval by the property owner. The Notice is attached as Exhibit 1 to this Consent

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Decree. The Notice shall be posted in a location accessible to all employees at each worksite and

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remain posted for the duration of the Consent Decree. As an alternative, should the property owner

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not approve the posting of the notice, ABM may mail the Notice to the employees, or distribute the

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notice with their paychecks. ABM will also provide the Notice to all new hires it its new hire

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information packet.
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Supervisory Accountability

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Defendant ABM’s performance evaluation forms for its managers and supervisors

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within the jurisdiction covered by SEIU Local 87 will include an evaluation of the manager or

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supervisor’s effectiveness in preventing discrimination, harassment and retaliation against and

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among the employees under his/her supervision, as well as the manager or supervisor’s ability to

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manage diversity and deal effectively with employees of all races and national origins.

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Other Injunctive Relief

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Within thirty (30) days of the entry of this decree, in addition to the training

referenced in Paragraph 8 above, ABM will provide separate training to Mohamed Almakrai and

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Mohamed Ali1 concerning discrimination and harassment based on race/national origin and

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retaliation, and on supervising a diverse workforce. This training will be of two hours duration for

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Mr. Almakrai, and one hour duration for Mr. Ali.
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A letter will be placed in Mohamed Almakrai’s personnel file stating that complaints

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have been made against him by various Hispanic workers that he has discriminated and/or harassed

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them because of their race/national origin and that he retaliated against them when they complained

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of such discrimination and/or harassment, and instructing him that any future incidents of

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race/national origin discrimination or harassment or retaliation could result in serious disciplinary

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action, up to and including termination.

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Record Keeping and Reports

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Within sixty (60) days of the entry of this decree, ABM will mail counsel for the

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Commission with a copy of the schedule for the trainings or distribution of annual notices referenced

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in Paragraph 8 above.
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Within thirty (30) days after completing each training session described in Paragraph

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8, ABM will mail to counsel for the Commission a report containing the date of training, the name

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and position of the individual who conducted the training, an outline of the training content, a list of

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all attendees, and copies of all materials distributed at the training.

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The training of Mohamed Ali, as a bargaining unit member of SEIU Local 87, will be to the extent
authorized by SEIU Local 87.
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Upon reasonable request from the Commission, ABM will mail to counsel for the

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Commission a copy of the lists referenced in Paragraph 10(b) above. When such lists are requested,

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the Commission will provide written notice of such requests, and ABM will provide the lists

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requested within twenty (20) days of the written request.

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Once every three (3) months, to be measured beginning at the date of the entry of this

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Consent Decree, and continuing for the duration of this Consent Decree, ABM will report to counsel

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for the Commission any complaints within the jurisdiction currently covered by SEIU Local 87 of

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discrimination based on race/national origin or retaliation for making complaints of or opposing

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discrimination based on race/national origin, whether written or oral, and whether pursued through

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the grievance procedure of the collective bargaining agreement or not, and how those complaints

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were investigated and resolved.

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MONETARY RELIEF

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ABM will pay the sum of $180,000.00 as emotional distress damages and in complete

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satisfaction of the Commission’s claims against ABM as set forth in its Complaint. The

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Commission makes no claim for wage loss for any individual through this decree. This sum will be

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allocated by the Commission, at its sole discretion, among the charging parties and similarly situated

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individuals. This sum will be paid by check made out directly to each individual designated by the

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Commission, and will be mailed to them directly at an address provided by the Commission. ABM

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will provide an Internal Revenue Service (IRS) Form 1099 reflecting each individual’s damages

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amount to said individual. Said checks will be sent by ABM within ten (10) days of transmission of

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the names of the individuals to whom the sum is being allocated, the amount of allocation to each

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individual, and a completed IRS Form W-9 and release for each individual. A copy of the checks,

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and any transmittal letter, will be sent to counsel for the Commission.

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EXPIRATION OF CONSENT DECREE

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This Consent Decree constitutes a full and final resolution of all the Commission’s

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claims against ABM in this action. This Consent Decree will be in effect for three (3) years, and will

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expire at midnight of the date three (3) years after its entry by the Court, provided that ABM has

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substantially complied with the terms of this Consent Decree. ABM will be deemed to have
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complied substantially if the Court has not made any findings or orders during the term of the

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Decree that ABM has failed to comply with any of the terms of this Decree.

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On Behalf of Plaintiff:

On Behalf of Defendant:

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Dated: September 13, 2011

Dated: September 13, 2011

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION

LITTLER MENDELSON
A Professional Corporation

/S/
WILLIAM R. TAMAYO
Regional Attorney

/S/
MATTHEW MARCA
Attorneys for Defendant
ABM JANITORIAL SERVICES—
NORTHERN CALIFORNIA
erroneously sued as ABM INDUSTRIES, INC.

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/S/
DAVID OFFEN-BROWN
Supervisory Trial Attorney
/S/
CINDY O’HARA
Senior Trial Attorney
/S/
DEBRA SMITH
Senior Trial Attorney

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ORDER

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It is so ordered.

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September 13, 2011
Dated:_____________________
____________________________________
U.S. District Court Judge

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UNIT
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S DISTRICT
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Jud

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NOTICE TO EMPLOYEES
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This notice has been posted pursuant to the settlement of a lawsuit: EEOC v. ABM Industries, Inc. In
accordance with the Consent Decree, ABM will provide training to management employees and
forepersons; provide training to human resources personnel on how to deal with employee complaints of
discrimination on the basis of race/national origin or retaliation and how to investigate complaints of
discrimination on the basis of race/national origin or retaliation; institute policies to correct past and
prevent future discrimination and retaliation, and promote diversity in the workplace; implement policies
to ensure supervisor and manager accountability with regard to anti-discrimination and anti-retaliation
practices; will enforce its policy regarding removal of discarded materials from a building in a consistent
manner; and adopt measures for posting information concerning permanent assignments so that any
employee can monitor the fairness of such assignments; for the next three years.

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Federal law prohibits an employer from engaging in or allowing discrimination based on race/national
origin. It is also unlawful for an employer to retaliate against any individual because he or she complains
of discrimination, cooperates with the investigation of discrimination, participates as a witness or potential
witness in any investigation or legal proceeding or otherwise exercises his or her rights under the law.

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Any employee who is found to have retaliated against any other employee because such employee
participated in this lawsuit will be subject to substantial discipline, up to and including immediate
discharge.
Should you have any complaints of discrimination or retaliation you should contact _(Company
representative)_____at ______.
Employees also have the right to bring complaints of discrimination or harassment to the U.S. Equal
Employment Opportunity Commission, San Francisco District Office, 350 The Embarcadero, Suite
500, San Francisco, CA94618, [phone].

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This notice shall remain prominently posted until ___date___ [three years from the entry of the decree]. As an
alternative, should the property owner not approve the posting of the notice, ABM may mail the notice to the employees or
distribute the notice with their paychecks.
This Official Notice shall not bealtered, defaced, covered or obstructed by any other material.

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