Equal Employment Opportunity Commission v. Mesa Systems

Filing 83

CONSENT JUDGMENT in favor of Equal Employment Opportunity Commission against Mesa Systems. Case Closed. Magistrate Judge Brooke C. Wells no longer assigned to case Signed by Judge Robert J. Shelby on 09/27/2013. (tls)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH – CENTRAL DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,

Case No.: 2:11-cv-01201-RJS-BCW
CONSENT DECREE

and
BALFRE ABARCA,
YURI GARAY,
JONATHAN MALDONADO,
JOSE ORTIZ,
DESIDERIO VILLEGAS,
FERNANDO VITE,
FRANCISCO VITE, and
OSCAR ZARATE-BERNAL,
Applicants for Intervention,
v.
MESA SYSTEMS, INC.,
Defendant.

I. RECITALS
1.

This matter was instituted by Plaintiff Equal Employment Opportunity

Commission (“Commission” or “Plaintiff” or “EEOC”), an agency of the United States
government, alleging that Defendant Mesa Systems, Inc. (“Defendant”) discriminated
against the Charging Parties and other aggrieved individuals whose ethnic group or
nationality favors a language other than English, as follows: (1) Charging Parties and

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other aggrieved individuals suffered disparate treatment in the terms and conditions of
their employment when Defendant implemented a restrictive language policy or rule in
its Salt Lake City, Utah, warehouse, subjected Hispanics to selective, more vigorous, and
harsher enforcement of said policy or rule, and created and/or tolerated a hostile work
environment based on national origin; (2) the restrictive language policy or rule had a
disparate impact on Hispanics, Asians/Pacific Islanders, and other employees whose
ethnic group or nationality favors a language other than English when it placed overly
broad constraints on the speaking of languages other than English and was not job-related
for the positions in question or consistent with business necessity; and (3) some of the
Charging Parties and other aggrieved individuals who complained about discrimination
were subjected to retaliation for engaging in conduct protected under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (“Title VII”).
2.

The Parties to this Decree are Plaintiff EEOC and Defendant Mesa Systems, Inc.

3.

The Parties, desiring to settle this action by an appropriate Consent Decree

(“Decree”), agree to the jurisdiction of this Court over the Parties and the subject matter
of this action, and agree to the power of this Court to enter a Consent Decree enforceable
against Defendant.
4.

As to the issues resolved, this Decree is final and binding upon the Parties and

their successors and assigns.
5.

For the purpose of amicably resolving disputed claims, the Parties jointly request

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this Court to adjudge as follows:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
II. JURISDICTION
6.

The Parties stipulate to the jurisdiction of the court over the Parties and do not

contest the court’s subject matter jurisdiction over this action, and waive the entry of
findings of fact and conclusions of law.
III. TERM AND SCOPE
7.

Term: The duration of this Decree shall be three (3) years from the date of

signing by the Court.
8.

Scope: The terms of this Decree shall apply to Defendant’s warehouse in Salt

Lake City, Utah.
IV. ISSUES RESOLVED
9.

This Decree resolves the claims alleged in the above-captioned lawsuit, and

constitutes a complete resolution of all of the Commission’s claims of unlawful
employment practices under Title VII that arise from Charges of Discrimination Nos.
540-2008-01533, 540-2008-01540, 540-2008-01532, 540-2008-01726, 540-2008-01546,
540-2008-01543, 540-2008-01548, 540-2008-01537, 540-2008-01538, 540-2007-03161,
540-2008-01535, 540-2011-00458, and 540-2013-01147 filed by Balfre Abarca, Jose de
Jesus Ortiz, Jonathan Maldonado, Yuri Bladimir Garay-Rodriguez, Douglas T. Toilolo,
Feleti L. “Fred” Tukuafu, Jorge L. Vera, Desiderio Villegas, Fernando Vite, Francisco

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Vite, Baltazar Vite, and Oscar Zarate-Bernal (collectively, “the Charging Parties”) and
from other aggrieved individuals receiving relief under this Decree.
10.

Defendant and its officers, agents, employees, successors, and all other persons in

active concert or participation with any of them will not interfere with the relief herein
ordered but, instead, shall cooperate in the implementation of this Decree.
V. MONETARY RELIEF
11.

Judgment is hereby entered in favor of the Commission and against Defendant in

the total amount of four hundred fifty thousand dollars and no cents ($450,000.00) (“the
Settlement Amount”). It is acknowledged that the monetary relief agreed to in settlement
of damages, set forth herein, constitutes a debt owed to and collectible by the United
States. Defendant shall pay the Settlement Amount in five (5) installments, as follows:
$100,000 on October 1, 2013;
$100,000 on December 31, 2013;
$100,000 on April 1, 2014;
$100,000 on October 1, 2014; and
$50,000 on April 1, 2015.
12.

Defendant will not condition the receipt of individual relief upon the Charging

Parties’ or other aggrieved individuals’ agreement to: (a) maintain as confidential the
terms of this Decree or the facts of the case; (b) waive his or her statutory right to file a
charge with any federal or state anti-discrimination agency; or (c) promise not to reapply
for a position at any of Defendant’s facilities.
13.

To resolve these claims, Defendant shall pay the Settlement Amount, allocated as

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follows:
Phillips Dayes Law Group PC (for attorneys’ fees):

$50,000

Jose de Jesus Ortiz (compensatory damages):

$75,000

Daniel Gannaway (compensatory damages):

$50,000

Jonathan Maldonado (compensatory damages):

$35,000

Desiderio Villegas (compensatory damages):

$35,000

Fernando Vite (compensatory damages):

$35,000

Francisco Vite (compensatory damages):

$35,000

Oscar Zarate-Bernal (compensatory damages):

$35,000

Balfre Abarca (compensatory damages):

$10,000

Alicia Frear(compensatory damages):

$10,000

James Frear (compensatory damages):

$10,000

Yuri Bladimir Garay-Rodriguez (compensatory damages):

$10,000

Sergio Mora (compensatory damages):

$10,000

Douglas Toilolo (compensatory damages):

$10,000

Ulises Velasquez (compensatory damages):

$10,000

Jorge Vera (compensatory damages):

$10,000

Baltazar Vite (compensatory damages):

$10,000

Feleti Tukuafu (compensatory damages):

$9,000

Gabriel Capitan (compensatory damages):

$1,000

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14.

The payments required under this Decree shall be made as described in

Attachment A, and mailed to the recipients at the addresses provided by the EEOC. The
EEOC will provide Defendant with completed W-9 forms and current addresses for the
individuals who will receive compensation under this Decree. Defendant shall issue an
IRS Form 1099 in each tax year to each recipient of settlement funds for their settlement
amounts, which are all designated as compensatory damages, with the exception of
Phillips Dayes Law Group PC, whose amounts are for attorneys’ fees. The IRS Forms
1099 shall be mailed to the recipients at the addresses provided by the EEOC in each year
that they are paid compensatory damages.
15.

Within three (3) business days after payments are mailed to payees, Defendant

shall submit to EEOC copies of the checks issued.
16.

If Defendant is delinquent more than five (5) days on any payment under this

Consent Decree, the EEOC shall notify Defendant of any delinquent payment. Defendant
will be provided an opportunity to cure within ten (10) days of receipt of the notice from
the EEOC; if Defendant fails to cure within the ten (10) days, judgment shall
immediately enter in favor of the EEOC on the total remaining unpaid balance plus postjudgment interest at the rate of twenty percent (20%) per annum.
VI. OTHER INDIVIDUAL RELIEF
17.

Defendant shall expunge from the personnel files of Charging Parties and other

aggrieved individuals identified by the EEOC who will receive relief under this Consent

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Decree (a) any and all references to the allegations of discrimination filed against
Defendant that formed the basis of this action; and (b) any and all references to the
Charging Parties’ and other aggrieved individuals’ participation in this action. For former
employees, Defendant shall expunge all documentation of disciplinary actions for
performance or conduct, unless retention of such records are otherwise required by other
federal statutes or regulations, such as those enforced or issued by the Department of
Transportation. For current employees, Defendant shall expunge all documentation of
disciplinary action for performance or conduct prior to August 28, 2011, unless retention
of such records is otherwise required by other federal statutes or regulations, such as
those enforced or issued by the Department of Transportation. Defendant shall expunge
the terminations, if necessary, from the records of any Charging Party or other aggrieved
individual who was terminated, and shall ensure that all of Defendant’s records reflect
that all such Charging Parties and other aggrieved individuals voluntarily resigned from
their employment. Further, Defendant will provide references in accord with its policy of
providing dates of employment and job title.
18.

Within ten (10) days after entry of this Decree, Defendant shall provide an

apology/letter of regret to the Charging Parties and other aggrieved individuals identified
by the EEOC receiving relief under this Consent Decree on company letterhead in the
form attached as Attachment B.

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VII. EQUITABLE RELIEF
A.

Injunctive Relief

19.

Defendant, its officers, agents, successors, and other persons in active concert or

participation with it, or any of them, are permanently enjoined from engaging in any
employment practice which discriminates on the basis of national origin.
20.

Defendant, its officers, agents, successors, and other persons in active concert or

participation with them, or any of them, are permanently enjoined from engaging in
reprisal or retaliation of any kind against any person because of such person’s opposition
to any practice made unlawful under the Americans with Disabilities Act, Title VII of the
Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the
Equal Pay Act, or the Genetic Information Nondiscrimination Act of 2008. Defendant
shall not retaliate against a person because such person brings an internal complaint of
discrimination with the Defendant; because such person files or causes to be filed a
charge of discrimination with the Commission or any other agency charged with the
investigation of employment discrimination complaints, or whose statements serve as the
basis of a charge; or because such person testifies or participates in the investigation or
prosecution of an alleged violation of these statutes. Defendant shall not retaliate in any
manner against individuals identified as witnesses in this action or who assisted in the
investigation giving rise to this action. Nor shall Defendant retaliate against any such
persons identified as a witness or possible witnesses of discrimination in future

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investigations or proceedings.
B.

Rescission of Restrictive Language Policy or Rule

21.

Defendant will not have a restrictive language policy or rule which requires that

only English and no other language be spoken in its Salt Lake City warehouse.
Defendant shall immediately, within twenty (20) business days from the entry of this
Decree, communicate verbally to all of its Salt Lake City employees that any prior
restrictive language policy or rule requiring that its Salt Lake City employees speak only
English in the warehouse has been rescinded and is no longer Defendant’s policy or rule,
and Defendant will certify in writing to the EEOC that the verbal communication has
occurred. Within twenty (20) days of the entry of this Decree, Defendant shall confirm
with each of its Salt Lake City employees in writing in both English and Spanish that any
prior restrictive language policy or rule requiring that its Salt Lake City employees speak
only English in the warehouse has been rescinded and is no longer Defendant’s policy or
rule.
C.

Human Resources Oversight

22.

Defendant has employed a Director of Human Resources (DHR) with expertise in

equal employment opportunity (EEO), human resources, and personnel matters and
Defendant will continue to so employ a DHR for the duration of this Consent Decree. If
the DHR separates from Defendant, Defendant will use all best efforts to hire a new DHR
within forty-five (45) days.

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23.

The following is a list of responsibilities relative to this Consent Decree which are

assigned to the DHR. It is the Parties’ expectation that the DHR will regularly consult
with Defendant’s legal counsel and that legal counsel may assist the DHR in carrying out
these functions. Among other things, the DHR will be responsible for:
•

Assisting managers, supervisors, and human resources employees with their
EEO, human resources, and personnel functions, as necessary;

•

Oversight of investigations of complaints of discrimination;

•

Coordinating Defendant’s compliance with anti-discrimination laws;

•

Oversight of Defendant’s compliance with this Consent Decree;

•

Maintaining records to be preserved under Section VIII (“Record Keeping
and Reporting”) of this Consent Decree;

•

Submitting the reports required under Section VIII (“Record Keeping and
Reporting”) of this Consent Decree;

•

Acting as the liaison between Defendant and the outside consultant(s);

•

Assisting with the development and implementation of Defendant’s EEO
training program provided for in this Consent Decree;

•

Assisting in the review and implementation of policies and procedures, as
provided in Section VII.D (“EEO Policy Review”) of this Consent Decree;

•

Evaluating whether Defendant has taken appropriate and reasonable action
to protect minority employees from national origin discrimination, national

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origin-based hostile work environment, and/or retaliation; and
•

Reviewing records documenting employee complaints of discrimination or
harassment based on national origin, including oral and written complaints,
charges of discrimination, and investigative records relating to such
complaints.

D.

EEO Policy Review

24.

Within sixty (60) days of the entry of this Decree, the Defendant shall review its

existing EEO policies to conform with the law and revise, if necessary.
25.

The written EEO policies must include at a minimum:
•

A strong and clear commitment to preventing unlawful national origin

discrimination and retaliation;
•

A clear and complete definition of disparate treatment based on national

origin and retaliation;
•

A statement that discrimination based on national origin or retaliation is

prohibited and will not be tolerated;
•

A clear and strong encouragement of persons who believe they have been

discriminated or retaliated against to report such concerns;
•

The identification of specific individuals, with telephone numbers, to whom

employees can report their concerns about discrimination, harassment, or
retaliation;

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•

A clear explanation of the steps an employee must take to report

discrimination or retaliation, which must include the options of either an oral or
written complaint;
•

An assurance that Defendant will investigate allegations of any activity that

might be construed as unlawful discrimination, that such investigation will be
prompt, fair, and reasonable, and conducted by its Director of Human Resources,
who is specifically trained in receiving, processing, and investigating allegations
of discrimination, and that, at a minimum, the investigation will include the
following: (a) documentation of the complaint; (b) a finding of whether
discrimination occurred; (c) a credibility assessment, as appropriate; (d) interviews
of all potential victims and witnesses identified, including the individual(s) alleged
to have participated in or condoned the unlawful conduct; (e) a review of all
documents which might shed light on the allegation, where such exist; (f)
contemporaneous notes of the investigation and conclusions; and (g)
contemporaneous notes of all corrective and remedial measures where
discrimination is found;
•

An assurance that appropriate corrective action will be taken by Defendant

to make victims whole and to eradicate the unlawful conduct within its workforce;
•

A description of the consequences, up to and including termination, that

will be imposed upon violators of Defendant’s anti-discrimination policies;

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•

A promise of maximum feasible confidentiality for persons who report

unlawful discrimination, harassment, and/or retaliation, or who participate in an
investigation into allegations of discrimination, harassment, and/or retaliation; and
•

An assurance of non-retaliation for persons who report unlawful

discrimination, harassment, and/or retaliation, and for witnesses who provide
testimony or assistance in the investigation(s) of such unlawful discrimination,
harassment, and/or retaliation.
26.

Within thirty (30) days after completion of the policy review required under

Paragraphs 24 and 25 above, the written EEO policies shall be posted in a prominent
location frequented by employees at Defendant’s facilities in Salt Lake City, Utah, and
distributed to each current employee in that location. The written EEO policies shall be
distributed to all new employees when hired. Defendant shall make the written EEO
policies available in alternative formats, as necessary, for persons with cognitive and
print disabilities that may prevent them from reading the policies. Alternative formats
will include but not be limited to an audiotape format.
27.

Defendant shall not retain documents related to the investigation in any of the

complainant's personnel files. These documents, instead, must be retained in a separate
secure location. All disciplinary actions taken against employees for violation of
Defendant's EEO policies will be retained in the violator's personnel file. In those cases
in which no conclusion could be reached on the allegations, the investigation documents

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shall remain in the alleged violator's file indefinitely.
E.

Training

28.

At least twice annually, Defendant shall provide EEO training for all its Salt Lake

City employees. Under this provision, employees will be trained at a minimum in the
following areas: (a) the Defendant’s policy and procedures for reporting alleged
discrimination; (b) understanding the kind of conduct which may constitute unlawful
discrimination or harassment; (c) the penalties for engaging in discriminatory behavior;
(d) Defendant’s non-retaliation policy; and (d) Defendant’s procedures for handling
accommodation requests. All training under this Paragraph 28 shall be at Defendant’s
selection and expense. Training may be by live presentation, on-line interactive training
and/or computer training, or any combination of the foregoing. The training will be
conducted as follows:
28.1. Non-managerial Employees: Defendant will provide non-managerial
employees at least two (2) training sessions of one (1) hour duration each per year
at its Salt Lake City warehouse. Attendance will be mandatory for every employee
on the days of such training. Make-up sessions are not required unless an
employee misses two (2) consecutive trainings in a year. At least one (1) of these
meetings will focus on national origin discrimination and retaliation.
28.2. Managerial and Supervisory Employees: Defendant will require all
individuals who work in a managerial or supervisory capacity, including but not

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limited to all General Managers, Operations Managers, Warehouse Managers, and
Dispatchers who have authority to hire, assign work, discipline, and/or fire, to
receive two (2) one (1) hour sessions per year of training regarding Title VII and
other federal anti-discrimination laws. One (1) hour of the training must directly
address national origin discrimination and retaliation, and one (1) hour must be
instruction in the proper methods of receiving, communicating, investigating
(where applicable), and ameliorating discrimination and retaliation. Defendant
shall emphasize with managerial and supervisory employees that due to their
positions of responsibility, such employees (a) must be particularly vigilant not to
discriminate, whether consciously or because they rely on subconscious
stereotypes; (b) must be sensitive to how their actions or words might be perceived
by subordinate employees; and (c) must avoid the temptation to retaliate against an
employee because a report or complaint is made, or might be made, against them.
Additionally, Defendant will require employees who are newly hired or recently
promoted into a managerial or supervisory position to complete the requisite one
(1) hour of report/complaint-handling training and one (1) hour of national origin
and retaliation-related training within twenty (20) days of being hired or promoted.
The training under this Paragraph 28.2 must be provided by the Director of Human
Resources.
28.3. Human Resource Employees: Defendant will require the Director of

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Human Resources to receive at least eight (8) hours of training annually regarding
Title VII and other federal anti-discrimination laws. Two (2) of the eight (8) hours
must directly address national origin discrimination and retaliation, and at least
two (2) hours must be instruction in the proper methods of receiving,
communicating, investigating (where applicable), and ameliorating discrimination
and retaliation, including the proper procedures for documenting and preserving
evidence of discrimination and retaliation, archiving the Defendant’s investigation
of complaints, as well as detailing the consequences and result of the investigation
where discrimination and/or retaliation is found. The training under this
Paragraph 28.3 must be prepared or provided by outside vendors.
28.4. Training on Investigative Techniques: The Director of Human
Resources, who has responsibility for responding to or investigating reports or
complaints of discrimination and/or retaliation, shall be provided four (4)
additional hours of annual training instructing on accepted professional standards
for receiving and investigating reports/complaints of discrimination and
retaliation, including such matters as witness interview techniques, other evidencegathering techniques, maintaining investigative notes and records, legal analysis of
the evidence, and methods for eliminating and ameliorating violations of antidiscrimination law. The training under this Paragraph 28.4 must be prepared or
provided by outside vendors.

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29.

Defendant agrees that the first such training session for each employee group

identified in Paragraph 28 above will take place within sixty (60) days after the Court’s
entry of this Decree. Defendant shall require that all of its personnel both register and
attend the training sessions. The Commission, at its discretion, may designate one or
more Commission representatives to attend any of the training sessions described above,
and the Commission representatives shall have the right to attend, observe, and fully
participate in all of the sessions. Defendant shall provide the Commission with fifteen
(15) days notice that a training session will be conducted, or alternatively, Defendant may
provide a comprehensive schedule of trainings planned for the year or for a number of
months, if such is more convenient. Defendant shall provide the EEOC with copies of
the training materials at least fifteen (15) days prior to each training session.
F.

Notice Posting

30.

Within five (5) business days after the Court’s entry of this Decree, Defendant

shall post in its Salt Lake City warehouse in a conspicuous place frequented by
employees the Notice attached as Attachment C to this Decree. The Notice shall be the
same type, style, and size as set forth in Attachment C. The Notice shall remain posted
for the duration of this Decree. If the Notice becomes defaced or illegible, Defendant
will replace it with a clean copy. Defendant shall certify to the Commission in writing
within ten (10) days of entry of this Decree that the Notice has been properly posted and
shall provide re-certification in each of the semi-annual reports required under the

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Reporting provisions of this Consent Decree.
G.

EEO Compliance as a Component of Management Evaluation

31.

Defendant shall, within sixty (60) days of the entry of this Consent Decree, and at

least continuously for the duration of this Decree, develop and implement a management
evaluation and compensation system which includes an EEO compliance component,
including compliance with policies and laws prohibiting retaliation, and compliance with
this Decree as factors which shall be used to evaluate all managerial and supervisory
employees, including but not limited to all managers, co-managers, assistant managers,
and district or regional managers responsible for Defendant’s Salt Lake City warehouse.
Defendant shall also, within sixty (60) days of the Court’s entry of this Decree, and at
least continuously for the duration of this Decree, advise Defendant’s managerial and
supervisory officials that the amount of monetary bonuses that managers and supervisors
may be eligible for during the duration of this Decree are subject to reductions based on
established non-compliance with EEO policies and procedures, policies, and laws
prohibiting retaliation, and this Decree.
VIII. Record Keeping and Reporting
32.

For the duration of this Consent Decree, Defendant shall maintain all records

concerning implementation of this Consent Decree, including, but not limited to, all of
the following:
• Applications;

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• Personnel files;
• Payroll records;
• Job Postings;
• Work schedules;
• Reports and complaints of discrimination and/or retaliation and records
documenting investigation of such reports/complaints, including witness
statements, documents compiled, conclusions and findings, and any
corrective and remedial actions taken.
33.

Defendant shall provide semi-annual reports for each six (6)-month period

following the entry of this Decree. The reports shall be due thirty (30) days following the
respective six (6)-month period, except the final report, which shall be submitted to the
Commission eight (8) weeks prior to the date on which the Consent Decree is to expire.
34.

Reporting Requirements: Each report shall provide the following information:
34.1. Reports/Complaints of Discrimination:
For purposes of this Paragraph 34.1, the term “report or complaint of
discrimination” will include any written or verbal report or complaint made
to a manager or supervisor or of which a manager or supervisor is aware
which alleges discrimination, or the witnessing of discrimination, based on
national origin and/or retaliation, even if such terminology is not used by
the report/complainant. The report/complainant need not invoke the terms

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“discrimination,” “Title VII,” “disparate treatment,” “violation,” or
“rights,” etc. Employees are not trained in legalese and frequently use such
terms as “unfair,” “unprofessional,” “uncomfortable,” “unjust,”
“retaliatory,” “treated differently,” or “disciplined without or for no reason”
and other such language that indicates an allegation of discrimination. The
report will include:
a.

The name, address, e-mail address, and telephone number of

each person making a report or complaint of national origin
discrimination to Defendant or to any federal, state, or local
government agency;
b.

The name, address, e-mail address, and telephone number of

each person identified as a potential witness to the incident of
discrimination;
c.

A brief summary of each report/complaint, including the date

of the report/complaint, the name of the individual(s) who allegedly
engaged in the discriminatory conduct, the Defendant’s investigation
and response to the report/complaint, the name of the person who
investigated or responded to the report/complaint, and what, if any
resolution was reached; and
d.

Copies of all documents memorializing or referring to the

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report/ complaint, investigation, and/or resolution thereof.
34.2. Reports/Complaints of Retaliation:
For purposes of this Paragraph 34.2, the term “report or complaint of
retaliation” will include any written or verbal complaint that alleges
retaliation for activity that is protected under Title VII or that alleges
retaliation for conduct which the Defendant recognizes or should have
recognized as protected activity under any of the statutes enforced by the
EEOC, even if the complainant does not use legal or technical terminology.
The report shall include:
a.

The name, address, e-mail address, and telephone number of

each person making a report or complaint of retaliation to Defendant
or to any federal, state, or local government agency;
b.

The name, address, e-mail address, and telephone number of

each person identified as a potential witness to the incident of
retaliation;
c.

A brief summary of each report/complaint, including the date

of the report/complaint, the name of the individual(s) who allegedly
engaged in the retaliatory conduct, the Defendant’s investigation and
response to the report/complaint, the name of the person who
investigated or responded to the report/complaint, and what, if any

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resolution was reached; and
d.

Copies of all documents memorializing or referring to the

report/ complaint, investigation, and/or resolution thereof.
34.3. Training:
For each training program required under Paragraph 28 and conducted
during the reporting period, Defendant shall submit a registry of attendance.
For each training program conducted by Defendant’s staff, Defendant will
provide the following information:
(a) a detailed agenda;
(b) copies of all training material provided to or utilized by the
trainers; and
(c) the name of each trainer and a summary of his or her
qualifications.
For each training program conducted by an outside consultant or vendor not
affiliated with Defendant, Defendant will identify the consultant and/or
vendor and provide a copy of the program agenda.
34.4. Posting of Notice: Defendant shall certify to the Commission that the
Notice required to be posted under Section VII.F of this Consent Decree has
remained posted during the reporting period or, if removed, was promptly
replaced.

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34.5. Policies: Defendant shall report on the status of the EEO policy review
process required under Section VII.D above, and shall provide a copy of the
written confirmation required in Section VII.B and certify to the Commission that
the written confirmation required in Section VII.B has been given to all of its Salt
Lake City employees.
34.6. If during the term of the Consent Decree the DHR separates from
Defendant for any reason, Defendant will provide written notice to the EEOC of
the separation within twenty (20) days of such separation and detail the efforts
undertaken by Defendant to replace the DHR.
IX. RETENTION OF JURISDICTION AND ENFORCEMENT OF DECREE
35.

This Court shall retain jurisdiction of this cause of action for purposes of

compliance with this Decree and entry of such further orders or modifications as may be
necessary or appropriate to effectuate equal employment opportunities for employees.
36.

There is no private right of action to enforce Defendant’s obligations under the

Decree, and only the Commission, its successors, or assigns may enforce compliance
herewith.
37.

The Commission may petition this Court for compliance with this Decree at any

time during which this Court maintains jurisdiction over this action. Should the Court
determine that Defendant has not complied with this Decree, appropriate relief, including
extension of this Decree for such period as may be necessary to remedy its non-

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compliance, may be ordered.
38.

Absent extension, this Decree shall expire by its own terms at the end of the thirty-

sixth (36th) month from the date of entry without further action by the Parties.
X. EEOC AUTHORITY
39.

With respect to matters or charges outside the scope of this Decree, this Decree

shall in no way limit the powers of the Commission to seek to eliminate employment
practices or acts made unlawful by any of the statutes over which the EEOC has
enforcement authority and that do not arise out of the claims asserted in this lawsuit.
XI. COSTS AND ATTORNEY'S FEES
40.

Each party shall be responsible for and shall pay its own costs and attorney’s fees.
XII. NO ADMISSION OF LIABILITY

41.

It is understood that the execution of this Decree shall not constitute or be

construed as an admission by Defendant of any liability to or of the validity of any claim
whatsoever by EEOC or by any Charging Party or other aggrieved individual.
XII. NOTICE
42.

Unless otherwise indicated, any notice, report, or communication required under

the provisions of this Decree shall be sent by certified mail, postage prepaid, as follows
Steve Elliott
Mesa Systems, Inc.
681 Railroad Blvd.
Grand Junction, CO 81505

Supervisory Trial Attorney
EEOC Denver Field Office
303 E. 17th Avenue, Suite 410
Denver, CO 80203

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XIII. SIGNATURES
43.

The parties agree to the entry of this Decree, subject to final approval by the

Court.
SO ORDERED this 27th day of September, 2013.

BY THE COURT:

__________________________________
ROBERT J. SHELBY
United States District Judge

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/s/ Lois A. Baar

ATTACHMENT A
$450,000 paid in five (5) installments, as follows:

$100,000 on October 1, 2013, as follows;
Phillips Dayes Law Group:

$20,000

Jose de Jesus Ortiz:

$15,000

Daniel Gannaway:

$10,000

Jonathan Maldonado:
Desiderio Villegas:
Fernando Vite:
Francisco Vite:
Oscar Zarate-Bernal:

$7,000
$7,000
$7,000
$7,000
$7,000

Balfre Abarca:
Alicia Frear:
James Frear:
Yuri Bladimir Garay-Rodriguez:
Sergio Mora:
Douglas Toilolo:
Ulises Velasquez:
Jorge Vera:
Baltazar Vite:

$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000

Feleti Tukuafu:

$1,800

Gabriel Capitan:

$200

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$100,000 on December 31, 2013;
Phillips Dayes Law Group:

$20,000

Jose de Jesus Ortiz:

$15,000

Daniel Gannaway:

$10,000

Jonathan Maldonado:
Desiderio Villegas:
Fernando Vite:
Francisco Vite:
Oscar Zarate-Bernal:

$7,000
$7,000
$7,000
$7,000
$7,000

Balfre Abarca:
Alicia Frear:
James Frear:
Yuri Bladimir Garay-Rodriguez:
Sergio Mora:
Douglas Toilolo:
Ulises Velasquez:
Jorge Vera:
Baltazar Vite:

$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000

Feleti Tukuafu:

$1,800

Gabriel Capitan:

$200

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$100,000 on April 1, 2014;
Phillips Dayes Law Group:

$10,000

Jose de Jesus Ortiz:

$16,875

Daniel Gannaway:

$11,250

Jonathan Maldonado:
Desiderio Villegas:
Fernando Vite:
Francisco Vite:
Oscar Zarate-Bernal:

$7,875
$7,875
$7,875
$7,875
$7,875

Balfre Abarca:
Alicia Frear:
James Frear:
Yuri Bladimir Garay-Rodriguez:
Sergio Mora:
Douglas Toilolo:
Ulises Velasquez:
Jorge Vera:
Baltazar Vite:

$2,250
$2,250
$2,250
$2,250
$2,250
$2,250
$2,250
$2,250
$2,250

Feleti Tukuafu:

$2,025

Gabriel Capitan:

$225

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$100,000 on October 1, 2014;
Jose de Jesus Ortiz:

$18,750

Daniel Gannaway:

$12,500

Jonathan Maldonado:
Desiderio Villegas:
Fernando Vite:
Francisco Vite:
Oscar Zarate-Bernal:

$8,750
$8,750
$8,750
$8,750
$8,750

Balfre Abarca:
Alicia Frear:
James Frear:
Yuri Bladimir Garay-Rodriguez:
Sergio Mora:
Douglas Toilolo:
Ulises Velasquez:
Jorge Vera:
Baltazar Vite:

$2,500
$2,500
$2,500
$2,500
$2,500
$2,500
$2,500
$2,500
$2,500

Feleti Tukuafu:

$2,250

Gabriel Capitan:

$250

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$50,000 on April 1, 2015.
Jose de Jesus Ortiz:

$9,375

Daniel Gannaway:

$6,250

Jonathan Maldonado:
Desiderio Villegas:
Fernando Vite:
Francisco Vite:
Oscar Zarate-Bernal:

$4,375
$4,375
$4,375
$4,375
$4,375

Balfre Abarca:
Alicia Frear:
James Frear:
Yuri Bladimir Garay-Rodriguez:
Sergio Mora:
Douglas Toilolo:
Ulises Velasquez:
Jorge Vera:
Baltazar Vite:

$1,250
$1,250
$1,250
$1,250
$1,250
$1,250
$1,250
$1,250
$1,250

Feleti Tukuafu:

$1,125

Gabriel Capitan:

$125

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ATTACHMENT B
APOLOGY / LETTER OF REGRET
On behalf of Mesa Systems, we want to express our regret that you were asked for some
period of time to speak only English while working in our Salt Lake City warehouse. We
are sorry that you did not feel respected and valued. The core values of our company are
based on pride, respect, and trust. This is aspirational for management as much as
employees. And we commit to you that we will re-double our efforts to make our
company and the workplace a welcoming environment for all employees of all
backgrounds, cultures, and heritages.
Signed:
Kevin Head
Steve Elliott
Kevin Haggerty
Patricia Murdock
Robert Albertoni

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ATTACHMENT C
NOTICE
The following notice is being posted pursuant to the terms of a Consent Decree reached
between the Parties in EEOC v. Mesa Systems, Inc. filed in the United States District
Court for the District of Utah, Civil Action No. 2:11-cv-01201 RJS-BCW. Management
of Mesa Systems, Inc. wishes to emphasize the company’s fundamental policy of
providing equal employment opportunity in all of its operations and in all areas of
employment practices. Mesa Systems, Inc. seeks to ensure that there shall be no
discrimination against any employee or applicant for employment on the grounds of race,
color, religion, sex, pregnancy, national origin, age or disability. This policy extends to
insurance benefits and all other terms, conditions, and privileges of employment.
Pursuant to Title VII of the Civil Rights Act of 1964, it is unlawful for an
employer to discriminate based upon the national origin of an applicant or employee.
Further, it is unlawful for any employer to retaliate against an employee because he or
she has opposed discriminatory employment practices, or because he or she has filed a
charge of discrimination with any municipal, state, or federal equal employment
opportunity agency, or because he or she has participated in an investigation of a charge
of discrimination.
Mesa Systems, Inc. respects the right of its employees and applicants for
employment to work in an environment free from discrimination. Accordingly, Mesa
Systems, Inc. reaffirms its commitment to complying with the strictures of Title VII, in
that it is our policy to prohibit all discrimination based on national origin.
Any employee who believes that he or she has suffered discrimination on the basis
of age, race, color, religion, sex, pregnancy, national origin, or disability has the right to
contact the EEOC directly at 1-800-669-4000. In compliance with federal law, no
official at Mesa Systems, Inc. will retaliate against an employee who makes an internal
complaint of discrimination or who contacts the EEOC or its state counterpart.
This Notice shall remain posted for the term of three (3) years.
Mesa Systems, Inc.
By:__________________________________ ____________________
Date

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