Free Motion for Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00795-EWN-BNB EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. MICHAEL'S WHOLESALE CUT FLORA, INC., Defendant. ______________________________________________________________________________ CONSENT DECREE ______________________________________________________________________________ RECITALS 1. This matter was instituted by Plaintiff, Equal Employment Opportunity

Commission ("COMMISSION"), an agency of the United States Government, against MICHAEL'S WHOLESALE CUT FLORA, INC. ("MICHAEL'S WHOLESALE") under Section 703(a) of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000-2(a) alleging that MICHAEL'S WHOLESALE discriminated against Tanya Mattern ("Mattern") on the basis of her disability under The Americans With Disabilities Act of 1990, 42 U.S.C. §12112(a) pursuant to 42 U.S.C. §12117, §107 which incorporates by reference Title VII . JURISDICTION AND VENUE 2. Jurisdiction of this Court is invoked pursuant to 42 U.S.C. §12117, §107 which

incorporates by reference Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U. S. C. 3. this Court. 4. This Consent Decree is final and binding upon the COMMISSION and The COMMISSION and MICHAEL'S WHOLESALE agree to the jurisdiction of

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MICHAEL'S WHOLESALE, their successors and assigns, as to the issues resolved. Furthermore, the COMMISSION and MICHAEL'S WHOLESALE agree to defend this Consent Decree should it be challenged. 5. Solely for the purpose of amicably resolving disputed claims, MICHAEL'S

WHOLESALE joins with the COMMISSION in requesting this Court to adjudge as follows: IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS: JURISDICTION 6. The COMMISSION and MICHAEL'S WHOLESALE stipulate to the jurisdiction

of the Court over the respective parties and subject matter of this action and have waived the entry of findings of fact and conclusions of law. 7. The term of this Consent Decree shall be sixty months from the date of signing by

the Court, subject to the reporting provisions in paragraphs 16, and 17. During that time, this Court shall retain jurisdiction over this matter and over the parties for the purpose of enforcing compliance with the Consent Decree, including issuing such orders as may be required to effectuate its purposes. Accordingly, this Consent Decree shall expire and shall be without force and effect sixty months from the date of entry of this Consent Decree. ISSUES RESOLVED 8. This Decree resolves all claims for back pay, reinstatement, front pay,

compensatory damages for past and future pecuniary and non-pecuniary loses, punitive damages,

injunctive relief and any other kind of relief arising out of the claims made by the COMMISSION against MICHAEL'S WHOLESALE as set forth in Civil Action No. 04-N-0795 (BNB). 9. MICHAEL'S WHOLESALE, its Board of Directors, officers, agents, employees,

successors, and all other persons in active concert or participation with any of them will not

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interfere with the relief herein ordered, but shall cooperate in the implementation of this Consent Decree. COMPLIANCE 10. Within five (5) days from the date of signing of the Consent Decree, MICHAEL'S

WHOLESALE must make whole Mattern for any and all damages arising out of this action by providing her a check in the amount of $ 7,500.00. The check made out to Mattern shall be mailed directly to her by certified mail or overnight mail. A copy of the check shall be mailed by regular mail to the COMMISSION. 11. Within twenty (20) days from the date of signing the Consent Decree,

MICHAEL'S WHOLESALE shall provide the Commission an affidavit of compliance attesting that the Notice found at Appendix A has been posted. 12. Within ninety (90) days of the signing of the Consent Decree MICHAEL'S

WHOLESALE shall provide four hours of training to management level employees and two hours of training to its employees. The training shall include all laws enforced by the Commission, with emphasis on reasonable accommodation and the interactive process under the Americans with Disabilities Act. The discussion should include an explanation of the company's procedure for requesting reasonable accommodation under the Americans with Disabilities Act. For all employees, only one hour of training may be provided by videotape. 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 trainer(s); and (c) the name of each trainer and a summary of his or her qualifications. For each training program conducted by a vendor not affiliated with Defendant, Defendant will identify the vendor and provide a copy of the program agenda. Within 5 days of the training provided pursuant to Paragraph 12, the Company shall provide EEOC a declaration (pursuant to 28 U.S.C. § 1746) that the training took place, and attach to the

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Declaration a list of attendees. MICHAEL'S WHOLESALE shall provide the same information regarding training and reporting each year for the following four years. 13. Within sixty (60) days of signing of the Consent Decree MICHAEL'S

WHOLESALE shall provide the Commission a copy of its discrimination policy and its procedures for providing reasonable accommodation pursuant to the Americans with Disabilities Act. The Commission, at its discretion, may designate one or more Commission representatives to attend any of the training sessions described above, and the Commission representative(s) shall have the right to attend and participate in all of the sessions. Defendant shall provide the Commission with thirty days notice that a seminar-training session will be conducted. COSTS AND ATTORNEY'S FEES 14. Each party shall be responsible for and shall pay its own costs and attorney's fees. POSTING PROVISIONS 15. For a period of five years from the date the Consent Decree is entered,

MICHAEL'S WHOLESALE shall post and keep posted in a conspicuous place at its place of business the notice and statement of policy, attached as Appendix A. If this posting becomes defaced, MICHAEL'S WHOLESALE will replace it with a clean copy for the term of the Consent Decree. REPORTING PROVISIONS 16. MICHAEL'S WHOLESALE will tender to the COMMISSION a report on all

requests for accommodation and all complaints of discrimination based on disability under the Americans with Disabilities Act, including the following: a. Names, addresses and telephone numbers of employees who complained of discrimination or requested an accommodation;

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b. Dates of the complaint or request; c. Substance of the complaint or the request; and d. A description of how the company responded to the complaint or request. 17. MICHAEL'S WHOLESALE shall provide a report for each six month period

following the date the court signs the Decree. The report shall be due thirty (30) days following the end of the six-month period. The final report is due thirty (30) days before the expiration of the Consent Decree. Within 90 days of the effective date of this Consent Decree, MICHAEL'S WHOLESALE will draft and provide to EEOC for comments its procedures for requesting and handling accommodation. These policies will be part of the training provided to employees and managers pursuant to Section 12, above. The Commission reserves all rights to proceed with respect to matters not covered in this Consent Decree and to secure relief on behalf of aggrieved persons not covered by this Consent Decree. Under no circumstances shall the EEOC, by commenting or electing not to comment upon proposed policies or procedures pursuant to Section 13, be deemed to have waived its right to investigate or litigate any alleged adverse effects of said policy upon equal employment opportunities. Nor shall the EEOC, by commenting or electing not to comment upon said policies or procedures, be considered to have accepted the validity of, or approved, the provisions adopted by MICHAEL'S WHOLESALE. ENFORCEMENT 18. There is no private right of action to enforce MICHAEL'S WHOLESALE

obligations under the Consent Decree and only the COMMISSION, MICHAEL'S WHOLESALE, or their successors may enforce compliance of the Consent Decree. 19. In the event that either party to this Consent Decree believes that the other party

has failed to comply with any provision(s) of the Consent Decree, the complaining party shall

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notify the alleged non-complying party in writing of such noncompliance and afford the alleged non-complying party twenty (20) days to remedy the noncompliance or satisfy the complaining party that the alleged noncomplying party has complied. If the noncomplying party has not remedied the alleged noncompliance or satisfied the complaining party that it has complied within twenty (20) days, the complaining party may apply to the Court for appropriate relief. In the event that, upon the expiration date of this Consent Decree, a dispute is pending pursuant to this paragraph, then the terms of this Consent Decree shall be extended with respect to the issue in dispute only, until such time as such dispute is resolved by the parties or the Court. EEOC AUTHORITY 20. With respect to matters or charges outside the scope of this Consent Decree, this

Consent Decree shall in no way limit the powers of the COMMISSION in seeking to eliminate unlawful employment practices pursuant to the Title VII. NOTICE 21. Any notice, report, or communication required under the provisions of this

Consent Decree shall be sent by certified mail, postage prepaid, to the appropriate party as follows: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Regional Attorney Denver District Office 303 E. 17th Avenue, Suite 512 Denver, Colorado 80203 MICHAEL'S WHOLESALE CUT FLORA Attn: Michael O'Malley, Esq. 1444 Stuart Street Denver, Colorado 80204 22. This Consent Decree constitutes the entire agreement between MICHAEL'S

WHOLESALE and the COMMISSION with respect to matters herein and it supersedes all negotiations, representations, and writings prior to this Consent Decree. No waiver, modification
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or amendment of any provision of this Consent Decree shall be effective unless made in writing, approved by all parties to this Consent Decree and approved by the Court or ordered by the Court. SO ORDERED, ADJUDGED AND DECREED this ______ day of______________, 2005.

_____________________________________ Edward W. Nottingham, District Judge United States District Court

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APPROVED AS TO FORM:

s/Joseph H. Mitchell JOSEPH H. MITCHELL Regional Attorney, By Consent Nancy A. Weeks Supervisory Trial Attorney

s/Ronald Podboy Ronald Podboy, Esq 1444 Stuart Street Denver, Colorado 80204 s/Michael O'Malley Michael O'Malley, Esq. 1444 Stuart Street Denver, Colorado 80204

s/Ann L. Fuller Ann L. Fuller, Trial Attorney United States Equal Employment Commission 303 East 17th Avenue Denver, Co. 80203

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APPENDIX A NOTICE "THE BOARD OF DIRECTORS OF MICHAEL'S WHOLESALE CUT FLORA (MICHAEL'S WHOLESALE CUT FLORA) EMPHASIZES ITS FUNDAMENTAL POLICY OF PROVIDING EQUAL EMPLOYMENT OPPORTUNITY IN ALL OF ITS OPERATIONS AND IN ALL AREAS OF EMPLOYMENT PRACTICES, AND TO ENSURE THAT THERE SHALL BE NO DISCRIMINATION AGAINST ANY EMPLOYEE OR APPLICANT FOR EMPLOYMENT ON THE GROUNDS OF RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or DISABILITY. THIS POLICY EXTENDS TO ALL TERMS, CONDITIONS, AND PRIVILEGES OF EMPLOYMENT." MICHAEL'S WHOLESALE is strongly committed to maintaining a work environment free of employment discrimination. MICHAEL'S WHOLESALE supports and will comply with such federal law in all respects and will not take any action against employees because they have exercised their rights under the law. MICHAEL'S WHOLESALE agrees that there shall be no discrimination or retaliation of any kind against any person because of opposition to any practice declared unlawful under Title VII or because of the filing of a charge, giving of testimony or assistance, or participation in any manner in any investigation, proceeding, or hearing under Title VII of the Civil Rights Act of 1964, as amended. Any employee who believes that he or she is being subjected to unlawful employment discrimination should report such conduct immediately to his/her immediate supervisor or another representative of MICHAEL'S WHOLESALE or the EEOC in writing or by telephone at: U. S. Equal Employment Opportunity Commission, 303 E. 17th Avenue, Suite 510, Denver, CO 80203; Telephone (303) 866-1300. THIS NOTICE SHALL REMAIN POSTED FOR A PERIOD OF FIVE YEARS FROM THE DATE WHICH APPEARS BELOW. Date ____________________________ s/Michael Gutstein Michael's Wholesale Flora

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CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of August, 2005, I electronically filed the foregoing CONSENT DECREE with the Clerk of the Court using the CM/ECF system with will send notification of such filing to the following e-mail address: [email protected] Ronald Podboy, PC Michael O'Malley 1444 Stuart Street Denver, Colorado 80204 Telephone: (303)623-3200 s/Ann L. Fuller Ann L. Fuller, Trial Attorney United States Equal Employment Commission 303 East 17th Avenue #510 Denver, Co. 80203 Telephone: (303)866-1319 Facsimile: (303)966-1375 E-Mail: [email protected] Attorney for the Plaintiff

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