U.S. Equal Employment Opportunity Commission v. Nevada Restaurant Services, Inc. et al

Filing 7

CONSENT JUDGMENT granting 6 Stipulated/Consent Judgment in favor of U.S. Equal Employment Opportunity Commission against Nevada Restaurant Services, Inc. Signed by Judge James C. Mahan on 6/5/2018. (Copies have been distributed pursuant to the NEF - ADR)

Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 1 of 25

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Anna Y. Park, CA SBN 164242
Sue J. Noh, CA SBN 192134
Rumduol Vuong, CA SBN 264392
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
255 East Temple Street, Fourth Floor
Los Angeles, CA 90012
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
Nechole M. Garcia, NV SBN 12746
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
333 Las Vegas Boulevard South, Suite 8112
Las Vegas, NV 89101
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
U.S. EQUAL EMPLOYMENT OPPORTUNITY ) Case No.: 2:18-cv-00954 JCM-CWH
)
COMMISSION,
)
)
Plaintiff,
) CONSENT DECREE;
) PROPOSED ORDER
v.
)
NEVADA RESTAURANT SERVICES, Inc. and Does )
)
1-5 Inclusive,
)
)
Defendants.
)
_________________________________________ )

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Plaintiff U.S. Equal Employment Opportunity Commission (the “EEOC” or “Commission”) and
Defendant Nevada Restaurant Services, dba Dotty’s hereby stipulate and agree to entry of this Consent
Decree (the “Decree”) to fully and finally resolve Plaintiff’s complaint against Defendant in U.S. Equal
Employment Opportunity Commission v. Nevada Restaurant Services, and Does 1-5, inclusive; Case
No. 2:18-cv-00954 (the “Action”). Collectively, the EEOC and Defendant are referred to herein as the
“Parties.” On May 24, 2018, Plaintiff filed this Action in the United States District Court, District of
Nevada, for violations of the Americans with Disabilities Act of 1990 (“ADA”), as amended, the ADA

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Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 2 of 25

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Amendment Act of 2008 (“ADAAA”), and Title I of the Civil Rights Act of 1991. The Action alleged

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that Defendant discriminated against Charging Parties Amanda Coccus and Margaret Tront, and a class

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of similarly aggrieved individuals when Defendant failed to engage in the interactive process, failed to

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provide a reasonable accommodation, and terminated individuals because of an actual or perceived

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disabilities.

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II.

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PURPOSES AND SCOPE OF THE CONSENT DECREE

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A.

The Decree is made and entered into by and between the EEOC and Defendant and shall

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be binding on and enforceable against Defendant, as well as their officers, directors, agents, successors

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and assigns; provided, however, that the parties to this Decree agree that there is no individual liability

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for violation of this Decree and, as such, no individual officer, director, agent, successor or assign may

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shall be named by the EEOC in any action to enforce this Decree.

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B.

The Parties have entered into this Decree for the following purposes:
1.

To provide monetary and injunctive relief, including, where appropriate,

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2.

To ensure Defendant’s employment practices comply with federal law;

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3.

To continue to seek a work environment free from discrimination, especially as it

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reinstatement;

relates to disability discrimination;

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4.

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To ensure training for Defendant’s employees with respect to the pertinent laws
regarding disability discrimination;

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5.

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To provide an appropriate and effective mechanism for handling complaints of
disability discrimination in the workplace;

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6.

To ensure appropriate recording keeping, reporting, and monitoring; and

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7.

To avoid the expensive and protracted costs incident to this litigation.

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C.

This Decree will be implemented by Defendant’s facilities on a company-wide basis.

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III.

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RELEASE OF CLAIMS

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A.

This Decree fully and completely resolves all issues, claims and allegations raised by the

EEOC against Defendant in the Action.
B.

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

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enforce this Decree in the event that Defendant fails to perform the promises and representations

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contained herein.

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C.

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

other charges that may later arise against Defendant in accordance with standard EEOC procedures.

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IV.

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JURISDICTION

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A.

The Court has jurisdiction over the Parties and the subject matter of this litigation. The

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Action asserts claims that, if proven, would authorize the Court to grant the equitable relief set forth in

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

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conforms with the Federal Rules of Civil Procedure, the ADA, and ADAAA and is not in derogation of

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the rights or privileges of any person.

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B.

The Court shall retain jurisdiction of this action during the duration of the Decree for the

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purposes of entering all orders, judgments and decrees that may be necessary to implement the relief

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provided herein.

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V.

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EFFECTIVE DATE AND DURATION OF DECREE

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A.

The provisions and agreements contained herein are effective immediately upon the date

which this Decree is entered by the Court (the “Effective Date”).
B.

Except as otherwise provided herein, this Decree shall remain in effect for three years

and six months after the Effective Date.

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VI.

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MODIFICATION AND SEVERABILITY

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A.

This Decree constitutes the complete understanding of the Parties with respect to the

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matters contained herein. No waiver, modification or amendment of any provision of this Decree will

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be effective unless made in writing and signed by an authorized representative of each of the Parties.

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B.

If one or more provisions of the Decree are rendered unlawful or unenforceable, the

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Parties shall make good faith efforts to agree upon appropriate amendments in order to effectuate the

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purposes of the Decree. In the event that such agreement cannot be reached, the remaining provisions

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will remain in full force and effect unless the purposes of the Decree cannot, despite the Parties’ best

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efforts, be achieved.

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VII.

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COMPLIANCE AND DISPUTE RESOLUTION

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A.

The Parties expressly agree that if the EEOC has reason to believe that Defendant has

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failed to comply with any provision of this Consent Decree, the EEOC may bring an action before this

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Court to enforce the Decree. Prior to initiating such action, the EEOC will notify Defendant and/or

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its/their legal counsel of record, by telephone and in writing, of the nature of the dispute, making a good

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faith effort to resolve the issue with Defendant. This notice shall specify the particular provision(s) that

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the EEOC believes Defendant breached. Absent a showing by either party that the delay will cause

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irreparable harm, Defendant shall have thirty (30) days to attempt to resolve or cure any non-monetary

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breach and shall have fifteen (15) days to attempt to resolve or cure any monetary breach.

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B.

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

dispute referenced in the EEOC notice.
C.

After thirty (30) days have passed with respect to any non-monetary breach, or fifteen

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(15) days have passes with respect to any monetary breach, if the Parties have reached no resolution or

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agreement to extend the time further, the EEOC may petition this Court for resolution of the dispute,

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seeking all available relief, including an extension of the term of the Decree, and the EEOC’s costs

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incurred in securing compliance with the Decree, and/or any other relief the court deems appropriate.

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VIII.

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MONETARY RELIEF

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Defendant will pay a total of $3,500,000.00 (“Gross Sum”) to resolve this Action. The EEOC

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has full and complete discretion under the terms of this Decree to determine who is a Claimant and to

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determine the amount of payment, if any, to the Charging Parties and/or Claimants.

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A. Monetary Relief for Charging Parties and Identified Claimants
1. In settlement of the claims of Charging Party Amanda Coccus, Charging Party Margaret

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Tront, and the claimants the EEOC has presently identified to Defendant (collectively

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referred to as the “Identified Claimants”), Defendant shall pay a portion of the Gross Sum

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as designated by the EEOC. The EEOC has determined that each Identified Claimant

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shall receive six months backpay in the amount of $8,580.

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2. The EEOC shall provide to Defendant a Distribution List designating payment amounts

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to each Identified Claimant. The EEOC’s Distribution List shall include six months of

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back pay as defined in Section VIII.A.1 above, and compensatory damages, if any, as

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designated by the EEOC.

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3. Within fifteen (15) business days of receiving the EEOC’s Distribution List, Defendant

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shall send a check or checks, via first class, certified mail, in the amounts designated in

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the EEOC’s Distribution List, to the Charging Parties and Identified Claimants. For each

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check constituting back pay, Defendant shall pay the employer’s portion of all deductions

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required by law, including but not limited to FICA and FUTA taxes, and such amounts

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shall not be deducted from payment of the monetary settlement amounts to the Charging

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Parties and Identified Claimants. Each check will remain valid for 180 days.

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4. Within ten (10) business days of mailing the aforementioned payments, Defendant shall

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submit a copy of the checks and any related correspondence as well as a report regarding

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the mailing of the checks to Anna Y. Park, Regional Attorney, U.S. Equal Employment

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

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90012. The report shall show the amount of the check(s), the date the check(s) was

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mailed, the person to whom check(s) were mailed, and the address to which checks were

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mailed.

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5. If Defendant becomes aware that any of the checks issued in this Action are returned or

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otherwise not cashed, Defendant shall notify the EEOC within fifteen (15) business days

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of gaining such knowledge, and the EEOC shall have responsibility for obtaining

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information necessary to deliver reissued checks, which Defendant shall re-mail within

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five (5) business days of obtaining updated information from the EEOC.

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6. Defendant shall prepare and distribute W2 and 1099 reporting forms to each Charging

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Party and Identified Claimant based on last known addresses or addresses provided by

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the EEOC and shall make any appropriate reports for each to the Internal Revenue

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

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associated with the issuing and distributing W2’s and 1099s to the Charging Parties and

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Identified Claimants. Within ten (10) business days of the issuance of any W2 or 1099

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form, Defendant shall provide a copy of the related correspondence to the Regional

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Attorney, Anna Y. Park, U.S. Equal Employment Opportunity Commission, 255 East

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Temple Street, 4th Floor, Los Angeles, CA 90012.

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B. Eligible Claimants
1. Defendant shall pay a portion of the Gross Sum to claimants eligible for relief who will

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be identified through the claims process as described below (“Eligible Claimants”). The

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payment, if any, to the Eligible Claimants shall be triggered by the EEOC’s issuance of a

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Distribution List designating each Eligible Claimant’s portion and amount of monetary

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relief as well as the name and address to which the checks are to be delivered. Anyone

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eligible to receive monies shall be determined after completion of the Claims Notice

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Process, set forth below in Section VIII.D. The EEOC has full and complete discretion

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under the terms of this Decree to determine who is eligible and to determine the amount

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of any payment, if any, to be given to an Eligible Claimant. The EEOC will make its best

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efforts to make these designations within eighteen (18) months of the Effective date.

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C. Claims Administrator
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Within thirty (30) days of the Effective Date, Defendant shall hire and appoint a specific

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professional individual or organization (“Claims Administrator”), approved by the

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EEOC, to oversee payments to Eligible Claimants as designated in a Distribution List. If

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the Claims Administrator initially appointed by Defendant thereafter declines to serve or

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to carry out its duties under this Decree, Defendant shall have ten (10) business days to

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

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provide the EEOC with the name of a new Claims Administrators for approval by the

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EEOC. If the EEOC objects to the appointment of the new administrator identified by
Defendant, the EEOC shall be entitled to identify the replacement Claims Administrator.

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2.

Defendant shall pay all costs associated with the selection and retention of the Claims

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Administrator as well as the performance of the Claims Administrator’s duties under this

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Decree.

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D. Claims Notice Process
1.

Within sixty (60) days of the Effective Date, Defendant shall provide to the Claims

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Administrator a list of all employees who resigned or were terminated at any time from

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April 30, 2011, through the Effective Date (“Potential Claimants”). The list provided by

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Defendant shall include the former employee’s last known address(es), phone number(s),

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last date of employment with Defendant, and any personal identifying information to

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assist in identifying the Potential Claimant.

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2.

Within thirty (30) days of receipt of the list of Potential Claimants, the Claims

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Administrator shall:

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a.

Send each Potential Claimant a Notice Letter, via certified, first class mail to each

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Potential Claimant (1) instructing the Potential Claimant when and how to

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complete an on-line questionnaire, (2) notifying the Potential Claimant that the

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EEOC will review the on-line questionnaire to determine if s/he is an Eligible

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Claimant, (3) that s/he may seek reinstatement if s/he is able to perform an open

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position for which the s/he is qualified and which essential functions s/he can

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perform with or without a reasonable accommodation, and (4) providing the

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Potential Claimant with the opportunity to seek assistance in completing the on-

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line questionnaire.

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Within ten (10) days of mailing each Notice Letter, Defendant or its Claims

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Administrator shall provide to the EEOC certification that the Claims

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Administrator mailed a Notice Letter to each such Potential Claimant.

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c.

Defendant or its Claims Administrator shall instruct the USPS to notify Defendant

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or its Claims Administrator of any undeliverable Notice Letters. Any Potential

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Claimant whose original Notice Letter is not returned as undeliverable, shall have

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ninety (90) days from the date the Defendant or its Claims Administrator mailed

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an unreturned Notice Letter to submit a completed questionnaire.

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If a Notice Letter is returned as undeliverable, the Claims Administrator shall

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complete the following tasks within ten (10) days of receipt of a Notice Letter

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returned as undeliverable:
i.

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Research such Potential Claimant’s most-recent address and

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further use its best efforts, including a search of a database such as

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Accurint, to locate such Potential Claimant;
ii.

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If Defendant or its Claims Administrator finds a more recent

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address for any such Potential Claimant, resend Notice Letter to

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the new address; and/or

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e.

If Defendant or its Claims Administrator fails to find a more recent address for

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any such Potential Claimant, Defendant or its Claim Administrator shall notify the

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EEOC of such information and provide to the EEOC certification outlining efforts

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to locate such Potential Claimant. The EEOC shall then have an additional thirty

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(30) days to attempt to find a good address for the Potential Claimant. If a new or

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different address is located by the EEOC, Defendant or its Claims Administrator

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shall re-mail the questionnaire and Notice in accordance with Section

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VIII.D.(d)(2).

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f.

Any Potential Claimant whose original Notice Letter and questionnaire was re-

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mailed in accordance with the procedures above, shall have ninety (90) days from

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the date of the re-mailing to submit a completed questionnaire.

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g.

Any such Potential Claimant whose original Notice Letter is returned

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undeliverable and for whom Defendant or its Claims Administrator exhausted the

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remailing process as set forth in Section VIII.D(d) and (e) above shall not be

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entitled to collect from the Gross Sum, unless the EEOC determines that good

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cause exists to determine otherwise.

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h.

The final re-mailing of all questionnaires must occur no later than twelve months
after the Effective date of this decree.

E. Claims Distribution Process

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1. At thirty (30) day intervals after mailing the first group of Notice Letters, the Claims

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Administrator shall provide Defendant and the EEOC electronic access to the on-line

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questionnaires completed by the Potential Claimants. The Claims Administrator shall

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provide the EEOC with a copy of the questionnaires submitted by mail in the event a

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Potential Claimant is unable to submit an on-line questionnaire

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2. The EEOC shall have the sole discretion to determine who is an Eligible Claimant and to

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designate the amount of the Gross Sum to be distributed to each Eligible Claimant

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consistent with Section VIII above.

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3. Within one hundred twenty (120) days of the final re-mailing required in Section VIII.D.

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above, the EEOC shall issue a Distribution List(s) to Defendant and the Claims

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Administrator. The EEOC’s Distribution List shall detail the amount to be designated as

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wages, subject to withholding taxes and other deductions Defendant is required by law to

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make, including but not limited to FICA and FUTA taxes; the amount, if any, to be

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designated as appropriately reported on a 1099; and the name and address to which each

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Eligible Claimant’s portion and amount of monetary relief shall be delivered.

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4. Within fifteen (15) days of receipt of the EEOC’s Distribution List, Defendant or its
Claims Administrator shall send a check or checks, via first class, certified mail, to each

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Eligible Claimant at the address provided by the EEOC in its Distribution List(s). For

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each back pay check, Defendant shall pay the employer’s portion of all deductions

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required by law, including but not limited to FICA and FUTA taxes, and such amounts

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shall not be deducted from payment of the monetary settlement amounts to the Eligible

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Claimants. Each check will remain valid for 180 days. To the extent, the checks need to

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be reissued, EEOC will notify Defendant or its Claims Administrator.

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5. Defendant shall prepare and distribute W-2 and 1099 tax reporting forms to the Eligible

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Claimants and shall make any appropriate reports for each to the Internal Revenue Service

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and other tax authorities. Defendant shall be solely responsible for any costs associated

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with the issuing and distributing W-2’s and 1099s to the Eligible Claimants. Within ten

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(10) business days of the issuance of any W2 or 1099 form, Defendant shall provide a

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

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

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CA 90012.

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6. At least every thirty (30) days after Defendant or its Claims Administrator issue checks

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pursuant to the Distribution List(s), Defendant or its Claims Administrator shall identify

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any check not negotiated and/or returned non-negotiated to Defendant or its Claim

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Administrator, to enable the parties to track remaining funds for redistribution. In the

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event there is a question regarding whether a check has been negotiated, Defendant will

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work with the EEOC to determine when payment was rendered, including providing a

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copy of the canceled check.

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7. On a quarterly basis throughout the duration of this Decree, Defendant will notify the

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EEOC of the remaining amount available out of the Gross Sum. . The EEOC may issue

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additional Distribution List(s) through the first 24 months of this Decree.

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8. No later than one year prior to the expiration of the term of this Decree, the EEOC shall

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issue a “Final Distribution List” that shall include the names of any additional Eligible

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Claimants and the amounts to be paid to such individuals. No further Distribution List

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shall be issued by the EEOC after the Final Distribution List is provided to Defendant or

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its Claims Administrator.

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The EEOC’s Final Distribution List shall detail the amount to be designated as wages,

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subject to withholding taxes and other deductions Defendant is required by law to make,

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including but not limited to FICA and FUTA taxes; the amount, if any, to be designated as

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appropriately reported on a 1099; and the name and address to which each Eligible

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Claimant’s portion and amount of monetary relief shall be delivered.

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10. Within sixty (60) days of receipt of the EEOC’s Final Distribution List, Defendant or its
Claims Administrator shall forward via first class mail to each Eligible Claimant payment

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for a gross amount equal to the full amount set forth in the Final Distribution List. For

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each wage check, Defendant shall pay the employer’s portion of all deductions required

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by law, including but not limited to FICA and FUTA taxes, and such amounts shall not be

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deducted from payment of the monetary settlement amounts to the Charging Parties and

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Identified Claimants. Within ten (10) business days of mailing the afore-mentioned

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payments, Defendant or its Claims Administrator shall submit a copy of the checks and

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any related correspondence to Anna Y. Park, Regional Attorney, U.S. Equal Employment

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

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90012.

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11. Within sixty days (60) after issuance of payments according to the Final Distribution List,

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any remaining monies in the Gross Sum can be donated to a charity that promote equal

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opportunities for people with disabilities that is agreed upon by the parties.

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F. Extending Deadline to Return Claims Forms for Good Cause

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For good cause, the EEOC may grant an exemption of any above-cited deadline to return

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a questionnaire; provided, however, that Defendant has no obligation to pay any money from the Gross

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Sum to an Eligible or Potential Claimant after the date this Decree expires.

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IX.

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GENERAL INJUNCTIVE RELIEF

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The General and Specific Injunctive Relief in infra Sections IX and X apply to all of Defendant’s
facilities nation-wide.

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A.

Non-Discrimination:

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Defendant, its officers, agents, employees (including all managerial and non-managerial

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employees), successors and assigns, during the period that this Decree is in effect, and all those in active

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concert or participation with Defendant, are hereby enjoined from engaging in any conduct that violates

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the terms of the Americans with Disabilities Act of 1990 (“ADA”), as amended, the ADA Amendment

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Act of 2008 (“ADAAA”), and Title I of the Civil Rights Act of 1991 including: discriminating against,

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harassing, or engaging in or being a party to any action, policy or practice that discriminates against any

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employee in violation of the ADA, including on the basis of their disabilities, perceived disabilities

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and/or records of disabilities. However, the parties to this Decree agree that there is no individual

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liability for violation of this Decree, the ADA, ADAAA, or Title I of the Civil Rights Act, and, as such,

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no individual officer, director, agent, successor or assign may shall be named by the EEOC in any action

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to enforce this Decree.

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B.

Non-Retaliation:

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Defendant, its officers, agents, employees (including all managerial and non-managerial

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employees), its successors, assigns, during the period this Decree is in effect, and all those in active

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concert or participation with them, are hereby enjoined from implementing or permitting any action,

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

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Defendant or its successors, or either of them, because he or she has in the past, or during the term of

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this Decree: (a) opposed any practice made unlawful under the ADA or ADAAA; (b) filed a charge of

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discrimination alleging such practice; (c) participated in any manner in an internal or external

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investigation or proceeding relating to this case or any claim of a violation of the ADA or ADAAA; (d)

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was identified as a possible witness or claimant in this action; and/or (e) asserted any right under this

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Decree; (f) sought and/or received any relief in accordance with this Decree are associated with an

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employee who has engaged in the activities set forth in this section. However, the parties to this Decree

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agree that there is no individual liability for violation of this Decree, the ADA, or the ADAAA, and, as

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such, no individual officer, director, agent, successor or assign may shall be named by the EEOC in any

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action to enforce this Decree.
C.

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The Interactive Process

Defendant, its successors, assigns, and all those in active concert or participation with them, or

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any of them, shall engage in the interactive process to identify and provide reasonable accommodations,

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in accordance with the law, that may include leave as an accommodation, temporary or permanent job

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reassignment, and/or modification of policies as appropriate.
D.

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86’ed Policy

Defendant, its successors and assigns, and all those in active concert or participation with them,

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or any of them, are hereby enjoined implementing any policy, procedure, or practice that summarily

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prohibits employees that have sought a reasonable accommodation from re-entering any of Defendant’s

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facilities. Defendant is further enjoined from prohibiting employees that have resigned or been

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terminated for a reason other than engaging in inappropriate conduct or behavior from re-entering any of

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Defendant’s facilities.

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X.

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SPECIFIC INJUNCTIVE RELIEF
A.

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1.

Reemployment.

In the course of the duration of this Consent Decree, Eligible Claimant, who are no longer

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employed by Defendant may express interest in returning to work for Defendant. Only Eligible

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Claimants will be considered for reemployment pursuant to the terms of this Consent Decree.

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2.

Upon receipt of a questionnaire Form, the Monitor discussed in Section X.B. of this Decree will

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make an initial determination based on the information provided on the face of the questionnaire

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whether an Eligible Claimant or Potential Claimant has expressed an interest in reemployment. If the

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Monitor determines that, based on the information provided on the face of the questionnaire, an Eligible

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Claimant or Potential Claimant has expressed interest in reemployment, the Monitor shall notify

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Defendant and the EEOC of that determination within fifteen (15) days of that determination. The

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EEOC will then work with Defendant to establish qualifications for reinstatement. If Defendant has an

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open position for which the Potential Claimant or Eligible Claimant is qualified, and which the Potential

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Claimant or Eligible Claimant can perform with or without a reasonable accommodation, Defendant will

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work with the EEOC to reinstate the Potential or Eligible Claimant. If no position is immediately open,

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Defendant will notify the EEOC within ten (10) business days of such position becoming available so

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long as such position becomes available within 60 days of the original determination that the Potential or
Eligible Claimant can perform the essential functions of such position with or without a reasonable
accommodation. If the EEOC does not provide information to Defendant that establishes qualifications

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for reinstatement, the Eligible Claimant or Potential Claimant will not be eligible for reinstatement. If,
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upon evaluation of the information provided by the EEOC, Defendant does not agree that an Eligible
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Claimant or Potential Claimant is qualified for reinstatement, the EEOC can avail itself of the
12
13
14
15

compliance procedures set forth in Section VI, above.
3.

With respect to each Eligible Claimant who seeks reemployment, whether an offer of

reemployment was made, and whether the offer was accepted Eligible Claimants seeking reemployment

16

will be required to go through the normal processes required of all new employees. If Defendant

17

revokes an offer of reemployment, Defendant shall provide the EEOC, in writing, with the basis for the

18

revocation, including an explanation of Defendant’s reason for revoking the offer. If, upon evaluation of

19

the information provided by Defendant, the EEOC does not agree with Defendant’s determination that it

20

had legitimate reasons for revoking a conditional offer of reemployment, the EEOC can seek further

21

information from Defendant, including documents and access to further information. The information

22

and documents will be provided to the EEOC within thirty (30) days of EEOC’s request. The parties

23

will meet and confer to discuss the revocation of the offer. In the event of a dispute concerning the

24

revocation of a conditional offer, the EEOC can avail itself of the compliance procedures set forth in

25
26
27
28

Section VI, above.
4.

If an Eligible Claimant rejects an offer of reemployment or does not report to work in accordance

with the terms of an offer of reemployment, Defendant has no further obligations relating to the
reemployment of that Eligible Claimant

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1

B. Equal Employment Opportunity Monitor

2

Within thirty (30) days after the Effective Date, Defendant shall retain an Equal Employment

3

Opportunity Monitor ("Monitor") with demonstrated experience in the area of creating effective policies,

4

procedures, practices and training regarding disabilities, reasonable accommodations, the interactive

5

process, and retaliation under the ADA, to monitor Defendant’s compliance with the ADA and the

6

provisions of this Decree. The Monitor shall be subject to the Commission's approval, which shall not

7

be unreasonably withheld. Defendant shall propose a Monitor to the Commission. If the Commission

8

does not approve the proposed Monitor, the Commission shall provide Defendant with a list of at least

9

three suggested candidates acceptable to the Commission. Defendant shall bear all costs associated with

10

the selection and retention of the Monitor and the performance of his/her/its duties. The Monitor's

11

responsibilities shall include:

12

1.

Reviewing, revising, and implementing Defendant’s new policies and procedures

13

regarding the prevention of disability discrimination, providing reasonable accommodations, engaging

14

in the interactive process, and the prevention of retaliation;

15

2.

Developing and providing training for all persons who work for Defendant on their rights

16

and responsibilities with regard to disability discrimination, reasonable accommodations, the interactive

17

process, and retaliation in compliance with the ADA and the terms of this Decree, including but not

18

limited to training employees how to request an accommodation; provided, however, that, with the

19

approval of the EEOC, the Monitor may utilize other qualified individuals to perform such training;

20
21
22
23
24
25
26

3.

Creating, applying, and implementing the Defendant’s new reporting and auditing

procedures in compliance with Defendant’s obligations under this Decree and the ADA;
4.

Training managerial and supervisory staff on their responsibilities with respect to the

ADA, including reasonable accommodations, the interactive process, and anti-retaliation policy;
5.

Ensuring that all reports required by this Decree are accurately compiled and timely

submitted;
6.

Developing procedures for responding to complaints of disability discrimination, the

27

failure to provide reasonable accommodations, and ensuring Defendant’s staff properly engage in the

28

interactive process;

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Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 16 of 25

1

7.

Ensuring and overseeing the proper investigation of all complaints of disability

2

discrimination, including whether a reasonable accommodation was denied in violation of the ADA, and

3

whether Defendant properly engaged in the interactive process;

4

8.

Providing training on how to engage in the interactive process related to requests for

5

reasonable accommodation, including providing guidance to Defendant’s managers and supervisors on

6

how to properly respond to accommodation requests, monitoring the interactive process, and providing

7

feedback to managers and supervisors;

8
9

9.

Implementing systems to ensure the preservation of all documents and communications

regarding all requests for a reasonable accommodation and the interactive process related to each

10

reasonable accommodation request, all complaints of disability discrimination, and responses to such

11

requests and/or complaints;

12

10.

Further ensuring compliance with the terms of this Decree; and

13

11.

Preparing a brief annual report on Defendant’s progress, including its compliance with

14
15
16

the terms of this Decree and the Monitor’s compliance with his/her responsibilities as articulated herein.
The Monitor shall ensure compliance for the foregoing provisions for the term of the Decree.
C. Policies and Procedures

17

Defendant, with the assistance of the Monitor, shall review, revise, distribute, and implement its

18

policies and procedures regarding disability, reasonable accommodations, and the interactive process to

19

comply with federal law (the “Policy”) on a company-wide basis. The Policy shall include:

20

1.

ADA’s reasonable accommodation and interactive process requirements;

21
22

2.

Clear and objective criteria that expressly prohibits discrimination on the basis of
disability and/or perceived disability;

23
24

A clear explanation of what constitutes a disability under the ADA, as well as the

3.

A clearly described process by which employees may seek reasonable

25

accommodations through the interactive process, including: identify to whom an

26

employee may make requests for accommodation, the optional procedures for

27

communicating such requests, identify the decision maker or decision makers

28

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1

who grant(s) and/or den(y)(ies) requests for accommodation, and identify whom

2

an employee or applicant may contact if they have questions about the process;

3

4.

Assurance that properly trained human resources personnel, management
officials, and supervisors shall be involved in the interactive process;

4
5

5.

A clearly described complaint process that provides accessible avenues of

6

complaint to whom employees may report discrimination;
6.

7

A complaint process that provides a prompt, thorough, and impartial
investigation that includes

8

a.

9

A clearly described process that provides accessible and confidential

10

avenues of complaint with the contact information of persons both internal

11

(i.e. human resources) and external (i.e. the EEOC) to whom employees or

12

applicants for employment may report discrimination;
b.

13

Assurance that Defendant will reasonably and to the best of its ability
protect the confidentiality of all discrimination complaints;

14

c.

15

Assurance that Defendant will take immediate and appropriate corrective

16

action when it determines that discrimination and/or retaliation has

17

occurred; and
d.

18

A procedure for development of a tracking system to be implemented by

19

Defendant that tracks discrimination and retaliation complaints to allow

20

Defendant to identify individuals who have been the subject of more than

21

one such complaint;

22

7.

when it determines that discrimination and/or retaliation has occurred;

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24

8.

27

The elimination of any policy or practice that requires an employee seeking a
reasonable accommodation to reapply for an open position;

25
26

Assurance that Defendant will take immediate and appropriate corrective action

9.

Assurance that Defendant will, reasonably and to the best of its ability, protect the
confidentiality of all reasonable accommodation requests;

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Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 18 of 25

10.

1

Require Defendant to hold all employees, including management, supervisory,

2

lead and human resources employees, accountable for engaging in conduct

3

prohibited under the ADA, the Policy, and this Decree; and
11.

4

Use the Accommodation Log described in subsection C below to conduct an audit

5

to determine whether any management, supervisory, or human resources

6

employees failed to properly respond to requests for reasonable accommodations.

7

Within thirty (30) days of the Effective Date of this Decree, Defendant shall provide to the

8

EEOC a copy of the Policy. Within sixty (60) days of the Effective Date, Defendant shall ensure that it

9

has distributed its Policy to each managerial and non-managerial employee. Within sixty (60) days of

10

the Effective Date, Defendant shall also submit to the Commission a statement confirming distribution

11

of the Policy. For each new managerial and non-managerial employee hired after the initial distribution

12

of the Policy described above, Defendant shall ensure that the new employee and/or manager receives

13

the Policy within thirty (30) days of employment.

14

D.

Accommodation Log

15

Defendant shall create and maintain an Accommodation Log that documents any

16

accommodation requests pertaining to any applicant or employee. Defendant shall retain all documents

17

relating to any accommodation requests identified in the Accommodation Log. In the event an employee

18

makes any subsequent request to modify an accommodation or implement a different accommodation,

19

Defendant shall include in the Accommodation Log the information required by this section. The

20

Accommodation Log shall include the following information:

21

1.

Name of person making the request;

22

2.

Date of the request;

23

3.

Physical or mental impairment identified by the applicant or employee;

24

4.

Any person to whom the request for accommodation was made;

25

5.

Accommodation(s) requested, if any;

26

6.

Any person involved in the interactive process;

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7.

Any records or documents made or reviewed in the course of engaging in the

28

interactive process;

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Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 19 of 25

8.

1

Any person involved in the decision-making process regarding the request for
accommodation;

2
3

9.

Accommodation provided, if any;

4

10.

The reason for the decision to provide or refuse any accommodation;

5

11.

Complaints made by individuals regarding accommodation issues, disability
discrimination issues, and/or retaliation issues; and

6

12.

7

original accommodation were sought and if such requests were granted or denied.

8
9

Whether any modification or additional accommodations in conjunction with the

E.

Training
1.

10

All Employees

11

Within 180 days of the Effective Date of this Decree, Defendant, in consultation with the

12

Monitor, shall provide live and interactive training, lasting at least 90 minutes in duration, to all

13

Defendant’s non-supervisory employees. The training shall be in a language the employees understand

14

and shall cover the revised Policy and the ADA and ADAAA. The training shall further address the

15

following:

16

a. The role and purpose of the ADA and ADAAA, including what constitutes

17

unlawful discrimination and the denial of a reasonable accommodation;

18

b. The rights and responsibilities under the ADA and ADAAA, including, but

19

not limited to engaging the interactive process and how to provide, request,

20

and obtain a reasonable accommodation;

21
22
23
24
25

c. Defendant’s policies and procedures for reasonable accommodation requests,
including engaging in the interactive process;
d. The type of conduct that is considered discriminatory under the ADA and
ADAAA; and
e. Defendant’s policies and procedures for reporting and handling complaints of

26

disability discrimination and retaliation. Examples shall be given of the

27

prohibited conduct to ensure understanding by the employees.

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Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 20 of 25

1

The training set forth above shall be mandatory and occur once a year for the duration of this

2

Decree. All persons required to attend such training shall verify their attendance in writing. The training

3

set forth above may be videotapes so that any employee unable to attend any scheduled training shall be

4

trained within sixty (60) days of the live training set forth above.

5

Every six (6) months during the term of this Decree, all employees hired, but who have not

6

otherwise been trained as indicated above, will receive the ninety (90) minute training as described

7

above. All persons required to attend such training shall verify their attendance in writing.

8

2.

Managerial and Supervisory Employees

9

In consultation with the Monitor, Defendant shall provide a live, interactive Management

10

Training to all managerial, supervisory, and lead employees of at least two (2) hour duration once every

11

year for the term of this Decree. The first Management Training shall occur within ninety (90) days of

12

the effective date of this decree and shall include training on how to:

13

a.

14

b. Recognize an accommodation request or potential need for an accommodation

15
16
17

Identify who is protected under the ADA and ADAAA;

for individuals with disabilities;
c. Engage in the interactive process to handle reasonable accommodation
requests;

18

d. Recognize and prevent disability discrimination; and

19

e. Properly handle and investigate complaints of disability discrimination in a

20

neutral manner.

21

All persons required to attend such training shall verify their attendance in writing. Any

22

managerial, supervisory, and lead employee unable to attend any scheduled Management Training shall

23

be trained within sixty (60) days of the live training set forth above. The training set forth above may be

24

videotapes so that any managerial, supervisory or lead employee unable to attend any scheduled training

25

may shall be trained within sixty (60) days of the live training set forth above.

26
27

Within 120 days of the hire date of any managerial, supervisory, and lead employee hired after
the annual training but within the term of the Decree, Defendant shall provide a live Management

28

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Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 21 of 25

1

Training covering the same issues set forth above. All persons required to attend such training shall

2

verify their attendance in writing.
3.

3
4

Human Resources Employees

In consultation with the Monitor, Defendant shall provide a live, interactive, advanced Human

5

Resources Training (“HR Training”) to all human resources employees of at least two (2) hours duration

6

once a year for the term of this Decree. The training shall address the topics covered in subsection D.2

7

as well as the following:
a. The interactive process, include the necessity of communicating with every

8

party involved with a particular accommodation in order to assess the needs of

9

the employee requesting a reasonable accommodation;

10

b. Monitoring accommodations to ensure employees are effectively

11
12

accommodated and to ensure accountability of all parties involved in the

13

accommodation process;
c. Obligations under this Decree, including the duties regarding the

14

Accommodation Log;

15

d. Investigating and properly handling complaints of disability discrimination

16

and retaliation; and

17

e. Reviews of prior decision-making and responses to requests for reasonable

18

accommodation received in the past year.

19
20

All persons required to attend such training shall verify their attendance in writing. Any Human

21

Resources employee unable to attend any scheduled HR Training shall be trained within sixty (60) days

22

of the live training set forth above.

23

Within sixty (60) days of the hire date of any Human Resources employee hired after the annual

24

training but within the term of the Decree, Defendant shall provide a live HR Training covering the

25

same issues set forth above. All persons required to attend such training shall verify their attendance in

26

writing.

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4.

Verification of Training

Within sixty (60) days of the first trainings to be performed pursuant to this Decree and annually

21

Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 22 of 25

1

thereafter, Defendant shall produce to the EEOC documents verifying the occurrence of all training

2

sessions conducted as required under this Decree, including the written training materials used, a

3

description of the training provided, a list of the individuals who conducted the training, and a list of the

4

names and job titles of attendees at each training session.

5

The EEOC shall have the right to attend the trainings described in the Decree. Thirty (30) days

6

prior to any training, Defendant shall provide written notice to EEOC including the time, location, name

7

and contact information of the trainer. The written notice shall be sent via U.S. Mail to the attention of

8

Anna Y. Park, Regional Attorney, U.S. Equal Employment Opportunity Commission, 255 East Temple

9

Street, 4th Floor, Los Angeles, California, 90012.

10

F.

11

Defendant shall work with the Monitor to establish a record-keeping procedure that provides for

12

the centralized tracking of reasonable accommodation requests and disability discrimination complaints.

13

The records to be maintained shall include:

14
15
16

Record Keeping

1. All documents generated in connection with any accommodations requests identified in
the Accommodation Log;
2. All documents generated in connection with any disability discrimination complaint,

17

including documents relating to all investigations or resolutions of any complaints, and the

18

identities of all witnesses identified by the complainant and/or through the Defendant’s

19

investigation;

20
21
22
23
24
25

3. All forms acknowledging employees’ receipt of Defendant’s revised disability, reasonable
accommodation, interactive process, and anti-retaliation policies; and
4. All documents verifying the occurrence of all training sessions and names and positions of all
attendees for each session as required under this Decree.
Defendant will make the aforementioned records available to the EEOC within ten business days
following a written request by the EEOC.

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Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 23 of 25

1

G.

Notification Letters

2

Within thirty (30) days after the Effective Date Defendant shall send a letter to all employees

3

from the President reaffirming that Defendant ended its 100% healed policy and Defendant’s

4

commitment to engaging in the interactive process to provide reasonable accommodations.

5

H.

6

Defendant, through its EEOC Monitor shall provide the following reports annually throughout

7

Reporting

the term of this Decree:

8

1.

The attendance lists of all attendees for all training sessions required under this Decree

9

that took place during the previous twelve months;

10

2.

Acknowledgement of receipt of the Policy for all employees during the previous twelve

11

months;

12

3.

Confirm that the Notification Letters set forth in Section H were sent to each employee.

13

4.

A copy of the Accommodations Log created pursuant to Section C.

14

5. A description of all disability discrimination and/or retaliation complaints made since the

15

submission and Defendant’s investigation of these complaints. The description shall include the

16

following for each complaint during the reporting period:

17

(a)

the name and title of the complaining party(ies);

18

(b)

the date of the complaint;

19

(c)

the nature of the complaint (i.e. comments, acts, etc.)

20

(d)

the names of alleged perpetrators of discrimination or retaliation;

21

(e)

the dates of the alleged discrimination or retaliation;

22

(f)

the date of the commencement and completion of the investigation;

23

(g)

a brief description of the investigation (i.e. identity of employee(s) who

24

investigated, number of persons interviewed, materials reviewed); and

25

(h)

26
27
28

a brief summary of how each complaint was resolved.

6. A report detailing the results of the Accommodation log audit as described in Section
X.C.11;
7. The status of Defendant’s compliance with the terms of this Decree;

23

Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 24 of 25

1

8. Whether any revisions of Defendant’s policies and procedures regarding reasonable

2

accommodation, disability discrimination, or retaliation have occurred since the

3

preceding report, including a copy of the revised policies or procedures;
9. The names of any Potential Claimants that have been re-employed pursuant to Section

4

X.A;

5

10. The names of any Potential Claimants that reject Defendant’s offer of re-employment

6

pursuant to Section X.A.

7
8
9

All reports under this Paragraph shall be directed to: U.S. Equal Employment Opportunity
Commission, Attn. Regional Attorney, 255 E. Temple Street, 4th Floor, Los Angeles, CA 90012.

10

XI.

11

COSTS OF ADMINISTRATION AND IMPLEMENTATION

12

OF CONSENT DECREE

13

Defendant shall bear all costs associated with its administration and implementation of its

14

obligations under this Consent Decree.

15

XII.

16

COSTS AND ATTORNEYS’ FEES

17

Each party shall bear its own costs of suit and attorneys’ fees.

18

XIII.

19

NO ADMISSION OF WRONGDOING AND PRESS RELEASE

20
21

By entering into this Consent Decree Defendant does not admit to and expressly denies
wrongdoing as may be inferred or implied herein.

22

XIV.

23

MISCELLANEOUS PROVISIONS

24

A.

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

25

in-interest with a copy of this Consent Decree within a reasonable time of not less than thirty (30) days

26

prior to the execution of any agreement for acquisition or assumption of control of any or all of

27

Defendant’s facilities, or any other material change in corporate structure, and shall simultaneously

28

inform the EEOC of same.

24

Case 2:18-cv-00954-JCM-CWH Document 6 Filed 05/29/18 Page 25 of 25

B.

1
2

During the term of this Consent Decree, Defendant shall assure that each of its officers,

managers and supervisors is aware of any term(s) of this Decree that may be related to his/her job duties.
C.

3

Unless otherwise stated, all notices, reports and correspondence required under this

4

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

5

Opportunity Commission, 255 East Temple Street, 4th Floor, Los Angeles, CA, 90012; facsimile

6

number [phone].
D.

7
8

Court.
All parties, through the undersigned, respectfully apply for and consent to this entry of this

9
10

The Parties agree to entry of this Decree and judgment subject to final approval by the

Consent Decree Order.
Respectfully submitted,

11

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION

12
13
14

Date:

5/17/18

15
16
17

JACKSON LEWIS, P.C.
Date:

5/17/18

/s/ Elayna J. Youchah
By: Elayna J. Youchah
Attorney for Defendant Nevada Restaurant
Services, Inc.

Date:

5/17/18

/s/ Paula Graziano
By: Paula Graziano, President
Nevada Restaurant Services, Inc.

18
19
20

/s/ Anna Y. Park
By: Anna Y. Park
Attorney for Plaintiff EEOC

21
22

ORDER

23

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

24
25

provisions thereof is HEREBY ORDERED.

26
27
28

June 5, 2018
Date:
The Honorable
United States District Judge

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Case 2:18-cv-00954-JCM-CWH Document 6-1 Filed 05/29/18 Page 1 of 2

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3
4
5
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14
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Anna Y. Park, CA SBN 164242
Sue J. Noh, CA SBN 192134
Rumduol Vuong, CA SBN 264392
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
255 East Temple Street, Fourth Floor
Los Angeles, CA 90012
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
Nechole M. Garcia, NV SBN 12746
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
333 Las Vegas Boulevard South, Suite 8112
Las Vegas, NV 89101
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
U.S. EQUAL EMPLOYMENT OPPORTUNITY ) Case No.: 2:18-cv-00954 JCM-CWH
)
COMMISSION,
)
)
Plaintiff,
) CERTIFICATE OF SERVICE
)
v.
) RE: CONSENT DECREE; PROPOSED
NEVADA RESTAURANT SERVICES, Inc. and ) ORDER
)
Does 1-5 Inclusive,
)
)
)
Defendants.
_________________________________________ )

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Case 2:18-cv-00954-JCM-CWH Document 6-1 Filed 05/29/18 Page 2 of 2

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CERTIFICATE OF SERVICE

2

I am, and was at the time the herein mentioned delivery took place, a citizen of the

3
4
5
6
7
8
9
10

United States, over the age of eighteen (18) years.
I am employed in the Legal Unit of the Los Angeles District Office of the United States
Equal Employment Opportunity Commission.
My business address is U.S. Equal Employment Opportunity Commission, Los Angeles
District Office, 255 East Temple Street, 4th Floor, Los Angeles, California 90012.
On the date that this declaration was executed, as shown below, I served the foregoing:
CONSENT DECREE; PROPOSED ORDER via first class U.S. Postal Service, postage
prepaid, to:

11

Elayna J. Youchah
Jackson Lewis
3800 Howard Hughes Parkway
Suite 600
Las Vegas, NV 89169
[e-mail]
[phone]

12
13
14
15
16
17
18

I declare under penalty of perjury that the foregoing is true and correct. Executed on
May 29, 2018.

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20
21

/s/ Anna Y. Park
Anna Y. Park

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-2-