U.S. Equal Employment Opportunity Commission v. Wirelesscomm.Inc

Filing 50

ORDER GRANTING CONSENT DECREE re 49 Proposed Order filed by U.S. Equal Employment Opportunity Commission. The Clerk shall close this file. ***ALL Deadlines terminated. Signed by Judge Edward J. Davila on 11/30/2012. (ecg, COURT STAFF) (Filed on 11/30/2012)

1

(Counsel are listed on the following page)

2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT FOR

9

THE NORTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18
19
20
21
22

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

) Case No.: 5:11-cv-04796-EJD
)
)
Plaintiff,
) CONSENT DECREE
)
)
And
)
DEISY MORA,
)
)
)
Plaintiff-Intervenor,
)
vs.
)
)
WIRELESSCOMM, INC. a California
)
Corporation,, LAHOUARI ARIBI, an
)
individual and KARIM HADID, an individual )
)
Defendants.
)
)
)

23
24
25
26
27
28

CONSENT DECREE
5:11-cv-04796-EJD

-1-

1
2
3
4
5

WILLIAM R. TAMAYO, SBN 084965 (CA)
MARCIA L. MITCHELL, SBN 18122 (WA)
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
San Francisco District Office
350 The Embarcadero, Suite 500
San Francisco, CA 94105
Telephone No. [phone]
Fax No. [phone]
[e-mail]

6

Attorneys for Plaintiff
7
8
9
10
11
12
13
14
15

JONATHAN C. GETTLEMAN, SBN 243560
LAW OFFICE OF JONATHAN C. GETTLEMAN
323 River Street, Suite D
Santa Cruz, California 95060
TELEPHONE: [phone]
FACSIMILE: 831-515-5228
[e-mail]
ERIC NELSON, SBN 282020
1527 Escalona drive
Santa Cruz, California 95060
TELEPHONE: [phone]
[e-mail]
Attorneys for Plaintiff-Intervenor

16
17
18
19
20
21
22
23
24
25
26

KASSRA P. NASSIRI (SBN 215405)
NASSIRI & JUNG LLP
47 Kearny Street, Suite 700
San Francisco, California 94108
Telephone Number: [phone]
Facsimile Number: [phone]
Attorneys for Defendants WirelessComm & Aribi
MICHAEL DILLINGHAM
Dillingham Law Group
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone Number [phone]
Facsimile Number: [phone]
[e-mail]
Attorney for Defendants WirelessComm& Aribi

27
28

CONSENT DECREE
5:11-cv-04796-EJD

-2-

1
2

I.

INTRODUCTION
A.

Plaintiff U.S. Equal employment Opportunity Commission (“Commission” or

3

“EEOC”) brought this lawsuit under Title VII of the Civil Rights Act of 1964 and Title I of the

4

Civil Rights Act of 1991 to correct alleged unlawful employment practices on the basis of sexual

5

harassment and constructive discharge and to make Deisy Mora, a former employee of

6
7
8

WirelessComm, Inc. (“WIRELESSCOMM” or “the Company”). EEOC alleged that
WIRELESSCOMM unlawfully subjected Ms. Mora to a sexually hostile work environment
which resulted in her constructive discharge from the company.

9

B.

On May15, 2012, the Court issued an order granting Deisy Mora’s motion to

10

intervene in the EEOC’s lawsuit. Ms. Mora’s Complaint-In-Intervention alleged independent
11

claims under federal and state laws against WIRELESSCOMM and individual defendants,
12
13
14
15
16

Lahouari Aribi and Karim Hadid.
C.

The Defendants denied the allegations in the EEOC’s Complaint and the

Complaint-in-Intervention, and denies that it or its employees have violated the law in any way.
D.

In the interest of resolving this matter, and as a result of having engaged in

17

comprehensive settlement negotiations, the EEOC, Plaintiff-Intervenor and WIRELESSCOMM

18

(“the Parties”) have agreed that this action should be resolved by entry of this Consent Decree.

19

This Consent Decree shall not constitute an adjudication and/or finding on the merits of the case.

20

E.

The Parties agree that this Consent Decree resolves all claims arising out of

21

EEOC Charge Number 556-2008-00372 and the EEOC’s investigation of said charge. The

22

Parties further agree that this Consent Decree constitutes a complete resolution of all claims of

23

sexual harassment and constructive discharge under Title VII and the California Fair

24

Employment and Housing Act (FEHA) that were, or could have been raised in the Complaint

25
26
27

and the Complaint-In-Intervention stemming from the underlying charge of discrimination.
F.

Plaintiff, Plaintiff- Intervenor and WIRELESSCOMM agree that this Consent

Decree constitutes a complete resolution of all state law claims arising out of the Plaintiff-

28

Intervenor’s employment with WIRELESSCOMM that were raised, or could have been raised,

CONSENT DECREE
5:11-cv-04796-EJD

-3-

1

in the Complaint-In-Intervention. Plaintiff-Intervenor will dismiss her claims against defendant,

2

Karim Hadid with prejudice.

3

G.

This Consent Decree comprises the full and exclusive agreement of the Parties

4

with respect to the matters discussed herein. No waiver, modification or amendment of any

5

provision of this Consent Decree shall be effective unless made in writing and approved by all

6
7

the Parties to this Decree, except that any substantive change, modification or amendment of any
provision of this Consent Decree shall require approval by the Court.

8

NOW, THEREFORE, in consideration of the mutual promises and agreements set forth

9

herein, the sufficiency of which is hereby acknowledged, IT IS ORDERED, ADJUDGED AND
10

DECREED that:
11

1.

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

12
13
14

This Court will retain jurisdiction over this Decree for all purposes until the expiration of
WIRELESSCOMM’s obligations as set forth herein.
2.

15
16

The entry of this Consent Decree will further the objectives of Title VII and will

be in the best interest of the Parties and the public.
3.

17
18

assigns.

19

II.

This Consent Decree is final and binding upon the Parties, their successors and

20

SCOPE OF THE CONSENT DECREE
The duration of the Consent Decree shall be three (3) years from the date of entry of the

21

Decree, provided that WIRELESSCOMM has complied substantially with the terms of this

22

Consent Decree. WIRELESSCOMM will be deemed to have complied substantially if the Court

23

has not made any finding or orders during the term of the Consent Decree that the Company has

24

failed to comply with any terms of this Consent Decree. During the three-year term of this

25
26
27

Consent Decree, this Court shall retain jurisdiction over this matter and the Parties for the
purpose of enforcing compliance with the Consent Decree, including issuing such orders as may
be required to effectuate its purposes.

28

CONSENT DECREE
5:11-cv-04796-EJD

-4-

1

III. GENERAL INJUNCTIVE PROVISIONS

2

A.

3

WIRELESSCOMM and its owners, officers, managers (including supervisory

Discriminatory Harassment:

4

employees), successors and assigns, are enjoined from: (1) discriminating against persons on the

5

basis of sex in the terms and conditions of employment; (2) engaging in or being a party to any

6
7
8

action, policy or practice that is intended to or is known to them to have the effect of harassing or
intimidating any employee on the basis of sex; or (3) creating, facilitating or, permitting the
existence of a sexually hostile work environment at a WIRELESSCOMM location about which

9

it knew or should have known.
10

B.

Retaliation:

11

WIRELESSCOMM and its owners, officers, managers (including supervisory
12
13
14

employees), successors and assigns are enjoined from participating in, engaging in, or
implementing or permitting any action, policy or practice about which it knew or should have

15

known, the purpose of which is to retaliate against any current or former employee of the

16

Company because he or she has in the past, or during the term of this Consent Decree: (1)

17

opposed any practice of harassment or other discriminatory acts on the basis of sex made

18

unlawful under Title VII or the FEHA; (2) filed a Charge of Discrimination alleging any such

19

practice; (3) testified or participated in any manner in any investigation (including, without

20

limitation, any internal investigation undertaken by the Company), proceeding or hearing in

21

connection with this case; (4) testified or participated in any manner in any investigation

22

(including, without limitation, any internal investigation undertaken by the Company),

23

proceeding or hearing in connection with any allegations of unlawful harassment or

24

discrimination which arise during the term of this Consent Decree; (5) was identified as a

25
26
27

possible witness in this action; and/or (6) asserted any rights under this Consent Decree.
IV. MONETARY RELIEF
A.

In settlement of the EEOC’s and Plaintiff-Intervenor’s claims of employment

28

discrimination alleged in the Complaint and Complaint-in-Intervention, WIRELESSCOMM

CONSENT DECREE
5:11-cv-04796-EJD

-5-

1

shall pay monetary relief to Deisy Mora in the gross amount of $97,000.00 (Settlement Sum).

2

The Settlement Sum represents compensation for emotional distress, pain and suffering.

3

B.

Defendant WIRELESSCOMM’s owner, Lahouari Aribi, has personally guaranteed

4

payment of the Settlement Sum to Deisy Mora in the event that Defendant fails to make timely

5

payments as outlined in paragraph IV.C, below. The personal guaranty is attached as Exhibit A.

6

C.

7
8

The Settlement Sum shall be paid as follows:
(1)

No later than November 15, 2012, Defendant WIRELESSCOMM shall

pay Deisy Mora the first installment of $25,000.00 (twenty five thousand dollars and no cents).

9

The initial check shall be made payable to the “Law Office of Jonathan Che Gettleman Trust
10

Account” and shall be mailed to Jonathan Che Gettleman, Esq. at 223 River Street, Suite D Santa
11

Cruz, CA 95060.
12

(2)

13
14

Beginning on December 15, 2012 and continuing on the fifteenth (15th)

day of every month for a period of twenty-four months WIRELESSCOMM shall issue a check

15

made payable to “Law Office of Jonathan Che Gettleman Trust Account” in the amount of

16

$3000.00 until the remaining $72,000.00 balance of the Settlement Sum has been paid in full.

17

The first installment check and every check thereafter shall be mailed to Jonathan Che

18

Gettleman, Esq. at 223 River Street, Suite D Santa Cruz, CA 95060.
(3)

19
20
21

Each amount paid as part of the Settlement Sum shall be designated by

WIRELESSCOMM as “other income” on IRS Form 1099.
D.

WIRELESSCOMM shall mail photocopies of each installment check, the IRS

22

forms and related correspondence to the EEOC’s counsel of record, Marcia Mitchell,

23

Supervisory Trial Attorney for the EEOC, at 350 The Embarcadero, San Francisco, CA 94105

24

simultaneously with the mailing of the installment checks to counsel for Plaintiff-Intervenor.

25
26
27

E.

Deisy Mora and her attorneys will not disclose or discuss the terms of the

conditions of the settlement without express prior written approval from Defendants, with the
exception of disclosure to retained attorneys, spouses, accountants, and other persons as may be

28

required by law.

CONSENT DECREE
5:11-cv-04796-EJD

-6-

1
2
3

V.

SPECIFIC INJUNCTIVE RELIEF
A.

WIRELESSCOMM affirms the following “Statement of Zero-Tolerance Policy

and Equality Objectives”:

4
5
6
7
8

WIRELESSCOMM is firmly committed to maintaining a zero-tolerance
policy concerning discriminatory harassment and retaliation against
individuals who report harassment in the company’s workplace; to swiftly
and firmly responding to any acts of harassment and retaliation of which
the company becomes aware; to implementing a disciplinary system that is
designed to strongly deter future acts of harassment or retaliation; and to
actively monitoring its workplace in order to ensure tolerance, respect and
dignity for all people.

9

The preceding paragraph does not create any individual contractual or common law causes of
10

action or other rights that would not otherwise exist under statute.
11

B.

Independent EEO Consultant: No later than December 15, 2012,

12
13
14

WIRELESSCOMM shall contract at its own expense with an Independent EEO consultant to
serve as WIRELESSCOMM’s agent for the purpose of developing appropriate EEO policies,

15

and for training its owner, supervisors and employees regarding the issue of discriminatory

16

harassment in the workplace and EEO requirements generally. WIRELESSCOMM shall also

17

contract an independent Human Resources consultant for the purpose of enforcing its Equal

18

Employment Opportunity (EEO) policies, administering its complaint procedures, investigating

19

complaints of discrimination, monitoring compliance with anti-discrimination laws, monitoring

20

compliance with the Consent Decree and filing biannual reports with the EEOC. The

21

Independent EEO consultant must have demonstrated experience in anti-discrimination laws,

22

particularly Title VII and discriminatory harassment, and must have experience investigating

23

allegations of harassment.

24

(1)

25
26
27

WIRELESSCOMM shall submit to the EEOC for its review and

consideration the name and curriculum vitae of the proposed Independent EEO consultant and
Human Resources consultant at least thirty (30) days before the deadline outlined in the
preceding paragraph. The EEOC will notify WIRELESSCOMM within fourteen (14) days of

28

receipt of the proposed consultant’s name and curriculum vitae if it has any concerns about the

CONSENT DECREE
5:11-cv-04796-EJD

-7-

1

proposed Independent EEO Consultant. The EEOC will review the proposed Independent EEO

2

consultant’s and Human Resources consultant’s qualifications in good faith and will not reject a

3

candidate without good cause.

4
5
6
7

(2)

The Independent Human Resources Consultant will retain records of all

complaints it receives during the pendency of this Consent Decree, its investigation of the
complaints and the remedial action taken. The HR Consultant will submit a report regarding any
complaints received as outlined in paragraph VIII, below.

8

C.

EEO and Harassment Policies: No later than December 15, 2012,

9

WIRELESSCOMM’s Equal Employment Opportunity (EEO) and harassment policies shall be
10

revised such that the policies: (i) include definitions of harassment based on sex and national
11

origin; (ii) include examples to supplement the definitions; (iii) provide for substantial and
12
13
14

progressive discipline and/or corrective action for incidents of discriminatory harassment; (iv)
include strong non-retaliation language with examples to supplement the definition of retaliation,

15

(v) provide for substantial and progressive discipline for incidents of retaliation; (vi) provide that

16

complaints of harassment and/or retaliation will be accepted irrespective of whether they are

17

made verbally or in writing; (vii) provide a timetable for commencing an investigation and for

18

taking remedial action; and (viii) indicate that WirelessComm will promptly communicate to the

19

complaining party the results of the investigation and the remedial actions taken or proposed, if

20

any.

21

(1)

The revised EEO policies shall be submitted to the EEOC for its review

22

and comments at least thirty (30) days before the anticipated date of implementation. The EEOC

23

will notify WIRELESSCOMM within fourteen (14) days of receipt of the revised policies if it

24

has any concerns about the proposed revisions.

25
26
27

(2)

In the event that WIRELESSCOMM decides to revise its EEO policies

and procedures during the term of the decree, WIRELESSCOMM will submit a copy of the
revised EEO and harassment policies to EEOC to the EEOC for its review at least thirty (30)

28

days before the anticipated date of implementation. The EEOC will notify WIRELESSCOMM

CONSENT DECREE
5:11-cv-04796-EJD

-8-

1

within fourteen (14) days of receipt of the revised policies if it has any concerns about the

2

proposed revisions.

3

D.

Complaint Procedures: WIRELESSCOMM shall adopt and maintain a

4

complaint procedure designed to encourage employees to come forward with complaints about

5

violations of its harassment policy. As part of the policy, WIRELESSCOMM shall provide its

6
7
8

employees with convenient, confidential and reliable mechanisms for reporting incidents of
harassment and retaliation. WIRELESSCOMM’s complaint procedure and harassment policy
shall notify employees that they can lodge a complaint with the Independent Human Resources

9

consultant described in paragraph, V.B, above, and shall provide the name and telephone
10

numbers for the Human Resources Consultant. Contact information for the Independent Human
11

Resources consultant also shall be continuously posted in a prominent place at all of
12
13

WIRELESSCOMM’s business locations.
(1)

14

WIRELESSCOMM shall effectively disseminate its EEO policies and

15

complaint procedures by: (a) distributing copies of the policies to all current employees within

16

10 days of their adoption; (b) giving a copy of the policy to and reviewing the policy with all

17

new employees upon the employees’ hire; and (c) requiring each employee who receives a copy

18

of the policies and procedures to sign a statement acknowledging their receipt of the policies.
(2)

19

WIRELESSCOMM will submit a copy of the complaint procedures to the

20

EEOC at the same time it submits its draft revised EEO policies as required by paragraph V.C

21

above.

22

VI. TRAINING

23

A.

24
25
26
27

Training of Employees: No later than December 15, 2012, WIRELESSCOMM

will present mandatory anti-discrimination training to all of its employees. The training will be
developed and presented by an outside source, i.e. someone who is not employed by
WIRELESSCOMM, who is knowledgeable about Title VII, the California Fair Employment and
Housing Act (FEHA) and discriminatory harassment and who has the background, skill and

28

CONSENT DECREE
5:11-cv-04796-EJD

-9-

1

ability to educate WIRELESSCOMM s employees about the issue of discriminatory harassment

2

in the workplace.

3

B.

Employees shall be given a questionnaire through which they can evaluate and

4

provide feedback regarding the training. WIRELESSCOMM will be required to present at least

5

one additional live training during the duration of the Consent Decree. WIRELESSCOMM shall

6
7
8

retain records reflecting when the training was presented, which employees received training and
which employees were absent for the training. The questionnaires and training records will be
submitted to the EEOC for monitoring.

9

C.

The EEOC will be entitled to review and comment on the curriculum vitae of the

10

proposed trainer(s) as well as the syllabus for the training prior to its presentation.
11

WIRELESSCOMM shall submit the names of the proposed trainer(s), resume(s) or other
12
13
14

information setting forth the trainer’s qualifications and the proposed syllabus to the EEOC for
its review and comments at least thirty (30) days before the anticipated date of the training. The

15

EEOC will notify WIRELESSCOMM within fourteen (14) days of receipt of the information if it

16

has any concerns about the proposed trainer(s) or training syllabus. The EEOC will review the

17

trainer’s qualifications and the proposed syllabus in good faith.

18

D.

Training of Lahouari Aribi: No later than December 15, 2012,

19

WIRELESSCOMM’s owner, Lahaouri Aribi shall attend in-person, one-on-one training on laws

20

that prohibit discrimination in employment. The training shall be developed and presented by an

21

outside source and shall focus on Aribi’s responsibilities and potential liability (including

22

personal liability) as a business owner. WIRELESSCOMM will be required to submit to the

23

EEOC the name and curriculum vitae of the proposed trainer and the proposed syllabus for the

24

EEOC’s review. The EEOC shall be entitled to reject a proposed trainer upon a showing of good

25
26
27

cause. The trainer shall submit a report to the EEOC informing the EEOC that the training has
been completed, outlining the substance of the training and evaluating Aribi’s participation in
and receptiveness to the training.

28

E.

Acknowledgment of Training Attendance:

CONSENT DECREE
5:11-cv-04796-EJD

- 10 -

1

All persons attending mandatory anti-harassment training pursuant to this Consent

2

Decree shall sign an acknowledgment of their attendance at the training, the date thereof, and

3

their position with the Company. WIRELESSCOMM shall retain the originals of these

4

acknowledgments and provide the EEOC with copies for each such training required with each

5

biannual report submitted during the duration of the Consent Decree as set forth below in

6
7
8

paragraph VIII.
F.

Cost of Training: The cost of the training described in paragraphs VI.A and

VI.C, above, shall be borne by WIRELESSCOMM.

9
10
11

VII. RECORDKEEPING POLICIES AND PROCEDURES
No later than December 15, 2012, WIRELESSCOMM shall adopt a policy instructing its

12

employees how to preserve and maintain all personnel and employment records in accordance

13

with the Title VII as set forth in 29 CFR § 1602. The revised recordkeeping policy shall be

14
15
16

submitted to the EEOC for its review and comments at least thirty (30) days before the
anticipated date of implementation. The EEOC will notify WIRELESSCOMM within fourteen
(14) days of receipt of the revised policies if it has any concerns about the proposed

17

recordkeeping policy. The EEOC will review the recordkeeping policy in good faith
18

VIII. REPORTS TO THE COMMISSION
19

A.

WIRELESSCOMM, through the Independent Human Resources Consultant

20
21
22
23

described in paragraph V.B, above, shall submit biannual reports to the EEOC containing the
following information:
(1)

Sexual Harassment Complaint Reports: No later than six months after

24

entry of this Decree, and every six months thereafter, the Independent HR Consultant will mail

25

to counsel for the EEOC a report containing the following information and documentation

26

covering the preceding six-month period: (a) a summary of each complaint, including the

27

substance of the complaint, the date the complaint was submitted, the result of the investigation

28

into such complaints and the date the investigation was completed; (b) additionally,

CONSENT DECREE
5:11-cv-04796-EJD

- 11 -

1

WIRELESSCOMM will identify the name, address, and telephone number of the complainant

2

and identify the person who received the complaint;

3

(2)

A copy of all records, documents and other writings relevant to such

4

complaints and investigations shall be maintained by WIRELESSCOMM during the period of

5

the Consent Decree and will be made available to the Commission within ten (10) days

6

following a written request from the Commission to WIRELESSCOMM’s counsel of record;

7
8

(3)

Training Report: WIRELESSCOMM will send the EEOC verification of

its completion of harassment training for its employees and Lahaouri Aribi in the form of a

9

sworn declaration of completion from an agent of the corporation. WIRELESSCOMM shall
10

submit copies of the acknowledgments of training signed by attendees, as set forth in paragraphs
11

VI.A, and VI.C, above, during the preceding six month period.
12
13

IX. POSTING OF NOTICE:
The Notice attached as Exhibit B shall be, and remain, posted in a clearly visible location

14
15

frequented by employees at each of WIRELESSCOMM’s locations during the term of this

16

Consent Decree.

17

X.

18

RETENTION OF JURISDICTION AND EXPIRATION OF CONSENT DECREE
A.

This Consent Decree shall terminate three (3) years from the date of entry by the

19

Court, unless this Court grants a request by the Commission or Plaintiff-Intervenor for an

20

extension of the Decree due to WIRELESSCOMM’s noncompliance with the decree. If the

21

Commission or Plaintiff-Intervenor that WIRELESSCOMM has not complied with the Consent

22

Decree, the Commission or Plaintiff-Intervenor will serve written notification of the alleged

23

breach to WIRELESSCOMM and its attorney of record or, if no such attorney exists, to its

24

registered agent for service of process. Commission and Plaintiff-Intervenor will not petition the

25
26
27

Court for enforcement sooner than fifteen (15) days after providing written notification to
WIRELESSCOMM’s attorneys of record. If the alleged breach is susceptible to cure,
WIRELESSCOMM will have 15 days after service of such written notification to serve written

28

notice to the Commission that it will cure the alleged breach, and 15 days after serving such

CONSENT DECREE
5:11-cv-04796-EJD

- 12 -

1

notice to cure the alleged breach. If the alleged breach is not susceptible to cure, the fifteen-day

2

period following written notice by the Commission or Plaintiff-Intervenor shall be used by the

3

parties to engage in good faith efforts to resolve the issue without Court intervention. If the

4

Commission or Plaintiff-Intervenor petitions the Court and the Court finds WIRELESSCOMM

5

to be in substantial violation of terms of the Decree, the Court may grant a request by the

6
7
8

Commission or Plaintiff-Intervenor to extend the period of this Consent Decree by a reasonable
period and may order such other relief as it deems necessary or equitable, after appropriate
briefing and factual hearing, if a factual hearing is deemed necessary by the court..

9

B.

Unless the duration of this Decree is extended as provided in the preceding

10

paragraph, three (3) years after the entry of this Consent Decree, this lawsuit will be dismissed
11

with prejudice. WIRELESSCOMM will be deemed to have complied substantially if the Court
12
13
14
15

has not made any findings or orders during the term of the Decree that the WIRELESSCOMM
has failed to comply with any of the terms of this Decree.
The Clerk shall close this file.
IT IS SO ORDERED: 11/30/2012
Hon. Edward J. Davila
United Stated District Court Judge

16
17
18

Respectfully submitted,
19
20

Dated: November 29, 2012

//s// Willam R. Tamayo
WILLIAM R. TAMAYO
Regional Attorney
MARCIA L. MITCHELL
Attorneys for Plaintiff

Dated: November 29, 2012

//s// Jonathan Che Gettleman
ERIC NELSON
JONATHAN GETTLEMAN
Attorneys for Plaintiff-Intervenor

Dated: November 29, 2012

//s// Michael Dillingham i
MICHAEL DILLINGHAM
Attorney for WirelessComm, Inc.

21
22
23
24
25
26
27
28

CONSENT DECREE
5:11-cv-04796-EJD

- 13 -

1

E-filing concurrence: I, Marcia L. Mitchell, attorney for Plaintiff EEOC, attest that I

2

have obtained the concurrence of attorneys for WirelessComm, Inc., and Plaintiff-Intervenor for

3

the filing of this pleading.

4

Dated:

November 29, 2012

5
6
7

/S/ Marcia L. Mitchell
MARCIA L. MITCHELL
Supervisory Trial Attorney

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

CONSENT DECREE
5:11-cv-04796-EJD

- 14 -

CONTINUING GUARANTY
This Continuing Guaranty (“Guaranty”), is entered into and is effective this ___ day of
November, 2012, by Lahouari Aribi, an individual (“Guarantor”), in favor of WirelessComm,
Inc. ("Defendant"), with respect to the following facts.
RECITALS
WHEREAS, on September 28, 2011 Plaintiff, Equal Employment Opportunity
Commission (“EEOC”) filed this Action pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”) and pursuant to an order dated May 15, 2012, Plaintiff-Intervenor, filed a separate
action this action alleging claims under Title VII and the California Fair Employment and
Housing Act (FEHA). Plaintiffs alleged that Defendant, WirelessComm, Inc. (Defendant),
violated the Title VII and FEHA by subjecting Deisy Mora to a sexually hostile work
environment which resulted in her constructive discharge.
WHEREAS, WirelessComm, Inc. and Lahouari Aribi deny any wrongdoing, and
specifically deny the illegality of any act or omission attributable to them under any theory.
WHEREAS, the EEOC, Ms. Mora, Guarantor and Defendant want to conclude fully
and finally all claims arising out of the above action without the expenditure of further
resources and expenses in contested litigation. The parties entered into a Consent Decree to
further the objectives of equal employment opportunity as set forth in Title VII and FEHA.
WHEREAS, Ms. Mora is willing to extend payment terms, but only upon the condition,
among others, that Guarantor shall have executed and delivered this Guaranty;
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth
in this Guaranty, and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Guarantor and Ms. Mora agree as follows:
AGREEMENT
1.

Unconditional Guaranty. Guarantor does hereby unconditionally guaranty and promise to
pay Ms. Mora, her successors and assigns, payment and performance of the Consent
Decree and all amounts due thereunder, including in all cases all such amounts which
would become due but for the operation of the provisions of Title 11 of the United States
Code or any other similar statutes (collectively, the “Obligations”).

2.

Expenses. Guarantor shall reimburse Ms. Mora for all expenses incurred by her in the
successful enforcement of any of her rights hereunder against Defendant or Guarantor,
including costs and attorneys’ fees, as determined and awarded by the Court.

3.

Guaranty of Payment. This Guaranty constitutes a continuing guaranty of payment when
due and not of collection, and Guarantor specifically agrees that it shall not be necessary
or required that Ms. Mora or any of her respective successors or assignees enforce any
remedy whatsoever against Defendant or any other person before or as a condition to the
obligations of Guarantor under this Guaranty.

{00634384.DOC v 1}

EXHIBIT A

4.

Payment Events. The Obligations shall become immediately due and payable by
Guarantor if Defendant or Guarantor:
(a)
(b)

Commences an action for liquidation or dissolution or is liquidated or dissolved;

(c)

Makes an assignment for the benefit of its creditors;

(d)

Offers or makes any composition with its creditors;

(e)

Sells or transfers all or substantially all of its assets except in the regular course of
business;

(f)

Files or has filed against it a petition under the provisions of any state insolvency
law or under any Chapter of the U.S. Bankruptcy Code, as amended from time to
time, or any other bankruptcy or insolvency statute;

(g)

Has a receiver appointed for its business or any part of its property;

(h)

Suspends normal business operations; or

(i)
5.

Defaults in any of its obligations to Ms. Mora;

Dies or becomes disabled.

Amendments, etc. with respect to Obligations; Changes Do Not Affect Liability; Waiver
of Rights. The obligations of Guarantor under this Guaranty shall remain in effect and
shall not be diminished or impaired, notwithstanding:
(a)

any withdrawal of any demand (including the commencement and continuance of
any legal proceedings) by Ms. Mora for payment or performance by Defendant of
any Obligations following a breach of the requirements for payments under the
Consent Decree;

(b)

any change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations or any amendment, extension, modification or waiver of
any Obligations or of any agreement or document relating thereto;

(c)

any compromise by Ms. Mora of any Obligations and any other guaranty in
respect of the Obligations;

(d)

any invalidity or unenforceability of the Consent Decree;

(e)

the change, restructure or termination of the corporate structure or existence of
Defendant and any corresponding restructure of the Obligations, or any other
restructure or refinancing of the Obligations or any portion thereof;

(f)

the existence of any claim, set-off, defense or other right that Defendant or any
other guarantor may have at any time against Ms. Mora, or that Guarantor may
have against Defendant, whether in connection with the Consent Decree, any
other agreement or document or any unrelated transaction;

EEOC v. WirelessComm Consent Decree Exh. A

2
EXHIBIT A

(g)

any release of, or foreclosure or realization on, collateral, if any, that is security
for the Obligations;

(h)

any discharge or release of Defendant or any other party liable for the
Obligations, or any release or substitution of any one or more other guarantors; or

(i)

any other circumstance which might otherwise constitute a defense available to,
or a discharge of, Defendant, other than with Ms. Mora’s agreement or consent,
or indefeasible payment in full of the Obligations.

Without limiting the generality of the foregoing, Guarantor’s liability under this Guaranty shall
continue if Ms. Mora’s or Guarantor’s remedies or rights against Defendant are impaired or
suspended without their consent.
6.

STATUTORY WAIVERS.
(a)

(b)

7.

GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF
AN ELECTION OF REMEDIES BY MS. MORA, EVEN THOUGH THAT
ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE
WITH RESPECT TO SECURITY FOR A GUARANTEED OBLIGATION,
HAS DESTROYED GUARANTOR’S RIGHTS OF SUBROGATION AND
REIMBURSEMENT AGAINST DEFENDANT BY THE OPERATION OF
SECTION 580d OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR
OTHERWISE, OR ANY OTHER SIMILAR LAW.
Guarantor waives all rights under Section 2815 of the California Civil Code, or
under any other similar law, to revoke this Guaranty in respect of future
transactions, even if there is no continuing or additional consideration for such
transactions.

Guaranty Continuing; Additional Waivers.
(a)

Guarantor waives diligence and all demands, protests, presentments and other
notices of any kind with respect to all Obligations, including notices of protest,
dishonor, nonpayment, acceptance of this Guaranty, and the creation, renewal,
extension, modification or accrual of the Obligations.

(b)

Guarantor waives the right to require Ms. Mora to proceed against or exhaust any
security or collateral Ms. Mora may hold, or pursue any other right or remedy for
Guarantor’s benefit, and agrees that Ms. Mora may proceed against Guarantor for
the Obligations without taking any action against Defendant or any other
guarantor and without proceeding against or exhausting any security or collateral
Ms. Mora holds.

(c)

No failure or delay by Ms. Mora in exercising any power, right or privilege under
this Guaranty shall impair any such power, right of privilege or be construed as a
waiver by Ms. Mora.

(d)

This Guaranty is a continuing guaranty and shall remain in full force and effect
and be binding upon Guarantor and its respective successors and assigns, and

EEOC v. WirelessComm Consent Decree Exh. A

3
EXHIBIT A

shall inure to the benefit of Ms. Mora and her respective successors, endorsees,
transferees and assigns of Ms. Mora, until all the Obligations owing to Ms. Mora
and the obligations of Guarantor under this Guaranty shall have been satisfied by
performance in full.
(e)

Guarantor agrees that if any of the Obligations are or become unenforceable for
any reason other than by operation of Ms. Mora’s agreement or consent, then
Guarantor’s liability under this Guaranty shall continue in full force and effect
with respect to all Obligations as if they were and continued to be legally
enforceable.

8.

Reinstatement. This Guaranty shall be reinstated if at any time any payment of any
Obligations must be returned by Ms. Mora upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Defendant or any Guarantor, or otherwise. Without
limiting the generality of the foregoing, if all or any part of the payment or performance
of the Obligations is avoided or recovered directly or indirectly from Ms. Mora as a
preference, fraudulent transfer or otherwise, this Guaranty shall be reinstated and remain
in full force and effect.

9.

Assignments. Guarantor further agrees that this Guaranty is assignable by Ms. Mora
without prior notice to Guarantor, and shall inure to the benefit of Ms. Mora’s successors
and assigns. This Guaranty is not assignable by Guarantor except with the express written
consent of Ms. Mora. Guarantor further agrees that its obligations hereunder shall be
binding upon its respective successors, heirs, assigns and legal representatives. The
dissolution or release from liability of any other guarantor shall not relieve Guarantor of
any liability hereunder.

10.

Representations and Warranties. Guarantor represents and warrants that:
(a)

this Guaranty has been duly executed by Guarantor;

(b)

this Guaranty constitutes a legal, valid and binding obligation of Guarantor,
enforceable in accordance with its terms, subject to the effects of bankruptcy,
solvency, reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing;

(c)

the execution, delivery and performance of this Guaranty will not violate or result
in default in any applicable law, rule or regulation or any judgment, order or
decree or agreement, instrument or undertaking applicable to Guarantor and will
not result in, or require, the imposition or creation of any lien on any of its
properties or revenues pursuant to any of the foregoing, in each case in any
material respect;

(d)

no consent or authorization of, or filing or registration with, any governmental
authority, and no consent of any other person, is required in connection with the
execution, delivery, performance, validity or enforceability of this Guaranty, other
than as may have been obtained or made and is in full force and effect;

EEOC v. WirelessComm Consent Decree Exh. A

4
EXHIBIT A

(e)

Guarantor is (x) solvent, (y) able to pay Guarantor's debts as they become due and
(z) does not have insufficient or too small capital; and

(f)

Guarantor delivers this Guaranty based solely on its independent investigation of
the financial condition of Defendant and assumes full responsibility for obtaining
further information.

11.

Subordination. Guarantor hereby subordinates all claims Guarantor may have against
Defendant arising from or relating to this Guaranty or otherwise, to the prior payment of
all obligations of Defendant to Ms. Mora.

12.

No Subrogation; Contribution. Guarantor shall not be entitled to be subrogated to any of
the rights of Ms. Mora against Defendant for payment made by Guarantor under this
Guaranty, nor shall Guarantor be entitled to seek any contribution from Defendant for
payments made by Guarantor under this Guaranty, unless all amounts then due and
payable to Ms. Mora have been paid in full.

13.

Entire Agreement. This Guaranty constitutes the entire agreement between the parties
with respect to the subject matter hereof.

14.

Binding Effect. This Guaranty shall be binding upon and inure to respective benefits of
Ms. Mora and Guarantor and respective successors and assigns of Ms. Mora and
Guarantor, except that Guarantor shall not have the right to assign its rights hereunder or
any interest herein without Ms. Mora’s prior written consent. The death of Guarantor
shall not terminate liability and this Guaranty shall be binding upon Guarantor’s heirs,
devisees and personal representatives.

15.

Severability. In the event that any one or more of the provisions contained in any of this
Guaranty shall be determined to be invalid, illegal, or unenforceable in any respect for
any reason, the validity, legality, and enforceability of any such provision or provisions in
every other respect, and the remaining provisions of this Guaranty shall not be in any way
impaired.

16.

Governing Law. This Guaranty shall be governed by, and construed in accordance with,
the laws of the State of California.

17.

Waiver of Trial By Jury. Guarantor and Ms. Mora each hereby irrevocably waives all
right to trial by jury in any action, proceeding or counterclaim arising out of or relating to
this Guaranty or any of the transactions contemplated thereby.

18.

Counterparts. This Guaranty may be executed in any number of identical counterparts,
which shall constitute an original and collectively and separately constitute a single
instrument or agreement.

19.

Joint and Several Liability. To the extent this Guaranty is executed by more than one
Guarantor the obligations hereunder shall be joint and several.

EEOC v. WirelessComm Consent Decree Exh. A

5
EXHIBIT A

EXHIBIT A

EXHIBIT A

NOTICE

1

TO ALL WIRELESSCOMM, INC. EMPLOYEES

2
3
4
5

This Notice is being posted pursuant to a Consent Decree entered by the federal Court in
EEOC & Mora v WirelessComm, Inc., (Wireless), Civil Action Number 5:11-cv-04796-EJD,
resolving a lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) and
Deisy Mora against WirelessComm. The EEOC is the federal agency responsible for enforcing
laws against discrimination in employment.

6
7
8
9
10
11

Title VII of the Civil Rights Act of 1964, as amended, is a federal which prohibits
discrimination on the basis of sex, race, religion, national origin and color in all employment
practices, including job application procedures, post-offer and other employment-related medical
evaluations, hiring, firing, advancement, compensation, training and other terms, conditions and
privileges of employment. 42 U.S.C. §2000e. Title VII prohibits sexual harassment as well as
harassment based on race, religion, national origin or color. Title VII further prohibits retaliation
against employees or applicants who avail themselves of the rights provided by the Title VII by
engaging in protected activities such as filing a charge of discrimination, complaining about
harassment and/or testifying or participating in an investigation conducted by the EEOC.

12
13
14
15
16
17
18
19

To resolve lawsuit identified above, WirelessComm the EEOC and Deisy Mora have
entered into a Consent Decree through which WirelessComm agrees to comply with all aspects
of Title VII. WirelessComm also agrees that it will not retaliate against applicants or employees
for complaining about discrimination. WirelessComm has adopted policies and procedures in an
effort to prevent discrimination within its workforce.
If you have a complaint of employment discrimination or questions regarding laws
prohibiting employment discrimination, you may seek assistance from
, an
independent Equal Employment Opportunity (EEO) consultant retained by WirelessComm by
. Alternatively, you can contact the EEOC’s San Jose Local Office, 96 N.
calling
Third St., Suite 250, San Jose, CA 95112 or by calling 1-800-669-4000(TDD 1-800- 669-6820).
General information may be obtained on the Internet at www.eeoc.gov .

20
21

[Name of posting official]

22
23

Date Posted:

24
25
26

EXHIBIT B
27
28

CONSENT DECREE
5:11-cv-04796-EJD

- 15 -