[PROPOSED] CONSENT DECREE
ROBERT S. LASNIK, District Judge.
I. INTRODUCTION
1. This action originated when Kristina Williams ("Ms. Williams") filed a charge of discrimination dated October 8, 2015 with the Equal Employment Opportunity Commission ("EEOC" or "Commission"). Ms. Williams alleged that The Hershey Company ("Defendant" or "Hershey") discriminated against her when it denied her a reasonable accommodation of her disability for her part-time Retail Sales Merchandiser ("RSM") position in May 2015, did not allow her to return to work, and then discharged her on August 19, 2015.
2. On May 11, 2017, the EEOC issued a Letter of Determination with a finding of reasonable cause to believe that Defendant violated the Americans with Disabilities Act of 1990, as amended (ADA), when it did not accommodate Ms. Williams starting on May 19, 2015, and when Defendant discharged her on August 19, 2015. Thereafter, EEOC attempted to conciliate the charge. However, conciliation was unsuccessful.
3. The Commission filed its Complaint on July 19, 2017, in the United States District Court for the Western District of Washington. The Complaint alleges that Defendant discriminated against Ms. Williams, a qualified individual with a physical disability, when it: (a) denied her a reasonable accommodation of her disability (herniated L4/L5 lumbar discs) by not providing an adjustment of her break time or work modification for her part-time Retail Sales Merchandiser position during the period May 20, 2015 to August 19, 2015 ("reasonable accommodation"); and (b) terminated her from her part-time RSM job on August 19, 2015. The EEOC sought monetary and non-monetary relief for Ms. Williams.
4. Defendant does not admit that it has violated any federal, state or local law, and this Consent Decree shall not be deemed an admission or adjudication of liability. However, in acknowledgement of the costs and risks associated with continued litigation faced by both sides, the parties want to conclude fully and finally all claims arising out of the EEOC's Complaint and Ms. Williams's charge of discrimination filed with EEOC. The EEOC and Hershey enter into the Consent Decree to further the objectives of equal employment opportunity in the ADA.
II. SETTLEMENT SCOPE
5. This Consent Decree is the final and complete resolution of all allegations of unlawful employment practices contained in Ms. Williams's discrimination charge, in the EEOC's administrative determination, and in the EEOC's Complaint filed herein, including all claims by the EEOC and Hershey for attorney fees and costs.
6. No waiver, modification or amendment of any provision of this Consent Decree shall be effective unless made in writing and approved by the Parties to this Decree, and any substantive change, modification or amendment of any provision of this Consent Decree shall also require approval by the Court.
III. MONETARY RELIEF
7. In settlement of this lawsuit, Hershey agrees to pay Ms. Williams the total amount of $25,000.00 within ten (10) business days of the date of entry of this Consent Decree by delivering the following to Ms. Williams's home address by certified mail with proof of delivery:
a. A check in the amount of $4,205.00 which constitutes back pay for Ms. Williams. The check shall be reduced by any applicable deductions for the employee's portion of FICA and applicable federal and applicable state income tax withholdings related to the payment of wages. Hershey shall pay the employer's portion of FICA. Hershey shall include a statement of payments and deductions; and
b. A separate check in the amount of $20,795.00 as compensatory damages payable to Ms. Williams. Hershey will issue Ms. Williams an IRS form 1099 for this payment.
c. Hershey shall transmit a copy of any checks made payable to Ms. Williams, together with an accounting of employee deductions and employer contributions made, to the EEOC at the same time that payment is made to Ms. Williams as described above to:
Damien A. Lee
U.S. Equal Employment Opportunity Commission
Seattle Field Office
909 First Avenue, Ste. 400
Seattle, WA 98104
damien.lee@eeoc.gov
8. Hershey will not condition the receipt of monetary relief by requiring Ms. Williams to: (a) maintain as confidential the facts and/or allegations underlying her charge, the EEOC's Complaint and the terms of this Decree; (b) waive her statutory right to file a future charge with any government agency; (c) agree to a non-disparagement and/or confidentiality agreement; or (d) release any claims beyond the ADA claims at issue in this action and which this Consent Decree resolves.
IV. INJUNCTIVE AND OTHER RELIEF
A. General Provisions
9. Hershey, its officers, agents, managers, supervisors, and human resource staff in the Seattle and Portland Sales Districts (herein referred to as "Pacific Northwest"), and all human resources/employee relations staff in Hershey, PA who provide advice and support to managers, supervisors and employees in the Pacific Northwest, and its successors and assigns, are enjoined from engaging in practices which unlawfully discriminate under the ADA against employees on the basis of disability who request reasonable accommodation and/or who are terminated.
10. During the duration of this Consent Decree, Hershey will provide prior written notice to any potential purchaser of its businesses, or a purchaser of all or a portion of Hershey's assets, and to any other potential successor, of the EEOC's lawsuit, the allegations raised in the EEOC's Complaint, and the existence and contents of this Consent Decree. In recognition of its obligations under the ADA, Hershey shall institute the policies and practices set forth below.
B. Anti-Discrimination Policies and Procedures
11. Hershey shall implement anti-discrimination policies, procedures and training for all management personnel, supervisors and employees in the Pacific Northwest, and for all human resources/employee relations staff in Hershey, PA who provide advice and support to managers, supervisors and employees in the Pacific Northwest, including the human resource/employee relations staff responsible for reviewing requests for reasonable accommodation from employees in the Pacific Northwest.
12. EEO Policies and Procedures. Hershey shall ensure it has written policies and procedures that: (a) prohibit disability discrimination; (b) explain to employees their rights and responsibilities under the ADA; (c) describe the process by which an employee can file an internal complaint based on disability, and how Hershey will investigate and resolve such a complaint; and (d) periodically update these policies and procedures to reflect changes in anti-discrimination laws. The policies and procedures will state that that they are promulgated at the direction of and with the endorsement by the highest level of Hershey management. These policies and procedures shall be provided to the EEOC for review and comment no later than thirty (30) days after execution of the Consent Decree. Within fourteen (14) days of receipt, the EEOC will advise Hershey of any comments. EEOC agrees to review the version of these policies and procedures in good faith.
13. Hershey's anti-discrimination policy will describe the process by which a Hershey employee can request a reasonable accommodation under the ADA, what factors will be considered in approving or denying the requested accommodation, the type of information that an employee must submit to support his/her requested accommodation and the time frame for approval or denial.
14. Not later than sixty (60) days after entry of this Consent Decree, Hershey shall distribute a written copy of its EEO policies to all employees, both management and non-management. Hershey will confirm that it distributed its written EEO policies to all employees within ninety (90) days of entry of this Decree. The EEO policies will also be distributed to every employee hired or re-hired during the duration of this Decree.
15. Policy Modifications. In the event that Hershey modifies any of the policies identified in paragraphs 12 through 13 above during the duration of the Decree, Hershey shall submit to the EEOC the proposed modifications no later than thirty (30) days before adoption. EEOC will notify Hershey within fourteen (14) days of receipt of the proposed modifications if it has any comments. EEOC agrees to review the proposed modifications in good faith.
C. Equal Employment Opportunity Training
16. Hershey shall provide two (2) hours of EEO training to the managers, supervisors and employees in the Pacific Northwest and for all human resources/employee relations staff in Hershey, PA who provide advice and support on ADA issues to managers, supervisors and employees in the Pacific Northwest, including the human resources/employee relations staff responsible for reviewing requests for reasonable accommodation from employees in the Pacific Northwest for the first year of the Consent Decree, and then two (2) hours of such training in the second year of the Consent Decree. This anti-discrimination training shall be developed and administered by a third-party provider with expertise in anti-discrimination matters and include, at a minimum, an overview of the ADA with special emphasis on employee rights and responsibilities in requesting a reasonable accommodation, employer obligations in responding to requests for reasonable accommodation, the interactive process, and the employer's ongoing obligation to ensure the effectiveness of reasonable accommodations, if granted. Defendant shall ensure that the format of the training is computer-based and interactive. Training materials must be submitted to the EEOC no later than forty (40) days prior to the training session to allow the EEOC the opportunity to comment on the training, and for Defendant to revise the training materials accordingly. Within fourteen (14) days of receipt, the EEOC will advise Defendant of any comments. The EEOC agrees to review the proposed policies and procedures in good faith.
17. After incorporating revisions to resolve any concerns raised by the EEOC to the foregoing training session, Hershey shall provide the EEO training noted in Paragraph 16 no later than one-hundred-and-eighty (180) days after entry of this Consent Decree.
18. Hershey shall notify the EEOC in writing of the completion of the training seminar and shall specify the names and job titles of the managers, supervisors and employees who participated in and completed the training. This information shall be provided as part of the annual reports required by Paragraphs 23-24 of this Consent Decree.
D. Non-Disclosure of Information, File Expungement and Positive Reference
19. Hershey shall not disclose any information or make reference to any charge of discrimination or this lawsuit in responding to requests for information about Ms. Williams. Hershey shall expunge from its personnel records any information relating to Ms. Williams's request for an accommodation and Hershey's response. Those records will be preserved in a file separate from Ms. Williams's personnel records. Consistent with Hershey's usual policies and practices regarding responding to requests for references for all former employees, Defendant shall only confirm Ms. Williams' years of employment with Hershey and her position during her employment to any prospective employer.
E. Policies Designed to Promote Accountability
20. Hershey shall advise all managers and supervisors, hiring officials, and human resources personnel of their duty to ensure compliance with its EEO policies. Hershey shall impose discipline, up to and including termination of employment, upon any manager, supervisor, hiring official, and human resource personnel who it determines has discriminated against an applicant or employee based on disability.
21. In conducting performance reviews, Hershey shall hold each manager, and supervisor accountable for EEO enforcement and compliance.
F. Reporting
22. Hershey shall submit a report to the EEOC for each year of this Consent Decree. The first report shall be submitted to the EEOC twelve (12) months after the entry of this Consent Decree, and a subsequent report will be submitted within twelve (12) months after the first report is submitted.
23. Each report shall contain the following information and attachments:
a. A certification that Hershey has:
1. Implemented its written EEO policies and procedures and distributed copies of its EEO policy as described in Paragraphs 11 and 15;
2. Complied with the training provisions enumerated in this Consent Decree in Paragraphs 16-18;
3. Enforced its policies and procedures to promote EEO accountability by managers and supervisors, as required by Paragraph 20; and
4. Complied with all other provisions of this Consent Decree.
b. Copies of the following documents shall be included with each annual report submitted to the Seattle Field Office of the EEOC:
1. A copy of Hershey's EEO policy and procedures developed and implemented in accordance with the provisions of this Consent Decree;
2. A summary of all medical/disability reasonable accommodation requests made by RSMs in the Pacific Northwest, the disposition of the request, and the reason for the disposition, along with the following information:
i. The initials of the individual who made the reasonable accommodation request. EEOC agrees to review these accommodation requests in good faith and Hershey agrees to cooperate with the EEOC in good faith to address any concerns raised by the EEOC with regard to those accommodation requests. If the parties cannot reach an agreement to address the EEOC's concerns regarding the accommodation requests reported pursuant to this section, at the written request of the EEOC, Hershey will provide the full address and telephone numbers of the individual.
ii. Name(s) and title(s) of the individual(s) who received, addressed and resolved the request for reasonable accommodation.
3. A sign-in sheet or list of the names and job titles of each manager, supervisor and employee of Hershey's who completed EEO training and the dates the training was conducted during the previous reporting period.
24. If applicable, Hershey shall submit a statement with its report to the EEOC specifying the areas of noncompliance, the reason for the noncompliance, and the steps that were or shall be taken to bring the company into compliance.
G. Notice Transmittal
25. Hershey shall deliver by e-mail or other mutually acceptable means, annually for the duration of the Consent Decree to all employees in the Pacific Northwest, the Notice attached as Exhibit 1 to this Consent Decree.
V. ENFORCEMENT
26. If the EEOC determines that Hershey has not complied with the terms of this Consent Decree, the EEOC shall provide written notification of the alleged breach to Hershey. The EEOC shall not petition the Court for enforcement of this Consent Decree for at least forty (40) days after providing written notification of the alleged breach. The 40-day period following the written notice shall be used by the EEOC and Hershey for good faith efforts to resolve the dispute.
VI. RETENTION OF JURISDICTION
27. The United States District Court for the Western District of Washington at Seattle shall retain jurisdiction over this matter for the duration of this Consent Decree.
VII. DURATION AND TERMINATION
28. This Consent Decree shall be in effect for two (2) years from the date of entry of the Decree. If the EEOC petitions the Court for breach of this Consent Decree, and the Court finds Hershey to be in violation of the terms of the Consent Decree, the Court may extend the duration of this Consent Decree.
[PROPOSED] ORDER APPROVING CONSENT DEGREE
In Court, having considered the foregoing stipulated agreement of the parties, HEREBY ORDERS THAT the Consent Degree be, and the same hereby is, approved as the final decree of this Court in full settlement of this action. This lawsuit is hereby dismissed with prejudice and without costs or attorneys' fees. The Court retains jurisdiction of this matter for purposes of enforcing the Consent Degree approved herein.
