RICHARD A. JONES, District Judge.
The Court, having considered the foregoing Consent Decree entered into by the parties, HEREBY ORDERS THAT the Consent Decree 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 Decree approved herein.
1. This action originated when Charging Party Angela Watson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC" or "Commission"). Ms. Watson alleged Defendant BLI Northwest Inc., f/k/a Diamond B Constructors Inc. ("Defendant BLI") discriminated against her in violation of Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 ("ADA") when Defendant BLI unlawfully discharged her because of her disability.
2. On December 18, 2014, the EEOC issued a Letter of Determination with a finding of reasonable cause to believe that Diamond B Constructors, named in this lawsuit as Defendant BLI Northwest Inc., f/k/a Diamond B Constructors Inc. ("Defendant BLI"), violated the ADA. Thereafter, EEOC attempted to conciliate the charge and conciliation was unsuccessful.
3. The Commission filed this lawsuit on June 25, 2018, in the United States District Court for the Western District of Washington alleging that Defendant BLI Northwest Inc., f/k/a Diamond B Constructors Inc. ("Defendant BLI"), and Defendants Creative Sustainable Solutions, Inc., Harris Acquisition IV, LLC, and Harris Contracting Company, dba Harris (collectively "Harris Defendants") discriminated against Ms. Watson when they terminated her employment on the basis of her disability. The EEOC alleged that Harris Defendants are liable in this matter under the principles of successor liability based on the conduct of the predecessor company Defendant BLI. The EEOC has since confirmed that the proper Defendant entities are BLI Northwest Inc. f/k/a Diamond B Constructors, Inc., and Harris Pacific Northwest, LLC f/k/a Harris Acquisition IV, LLC. Pursuant to the stipulation of the parties, the EEOC has filed an Amended Complaint dismissing OneHarris, Inc. f/k/a Creative Sustainable Solutions, Inc. and Harris Contracting Company, dba Harris, as Defendants and all claims asserted against them, and naming BLI Northwest Inc. f/k/a Diamond B Constructors, Inc. and Harris Pacific Northwest, LLC f/k/a Harris Acquisition IV, LLC, as the named Defendants (collectively "Settling Defendants"). Pursuant to this stipulation, the Court has entered an Order of dismissal dismissing all claims asserted against OneHarris, Inc. f/k/a Creative Sustainable Solutions, Inc. and Harris Contracting Company, dba Harris, with prejudice and without fees or costs to any party.
4. The parties want to conclude fully and finally all claims arising out of the EEOC's Amended Complaint and Ms. Watson's charge of discrimination filed with EEOC. The EEOC and Settling Defendants enter into this Consent Decree to further the objectives of equal employment opportunity as set forth in the ADA.
5. This Consent Decree is not an adjudication or finding on the merits of this case and shall not be construed as an admission by Defendants of a violation of the ADA or any other laws. Defendants have denied that they have committed any alleged unlawful employment practices. The parties also recognize and admit that the alleged unlawful employment practices occurred before any of the Harris Defendants acquired Defendant BLI, and nobody who was employed by the Harris Defendants at the time of the alleged unlawful employment practices was involved in any way with any of the alleged unlawful employment practices. As an acquiring entity, however, Harris Pacific Northwest, LLC f/k/a Harris Acquisition IV, LLC is entering into this Consent Decree to resolve the dispute without admitting any unlawful employment practices. As the predecessor entity, Defendant BLI is entering into this Consent Decree as one of the Settling Defendants to the extent Defendant BLI has any employees, or could have any employees, who could complete any of the injunctive obligations of the Consent Decree, which it does not at this time.
6. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII"), and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
7. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Western District of Washington.
8. This Consent Decree is the final resolution of all allegations of unlawful employment practices contained in Ms. Watson's discrimination charge, in the EEOC's administrative determination, and in the EEOC Amended Complaint filed herein, including all claims by the parties for all forms of damages, injunctive or non-monetary relief, attorney fees and costs.
9. Settling Defendants will not condition the receipt of monetary relief on Ms. Watson's agreement to: (a) maintain as confidential the facts and/or allegations underlying her charge and the Amended Complaint and the terms of this Consent Decree; (b) waive her statutory right to file a charge with any governmental agency; (c) refrain from reapplying for a job with Settling Defendants; or (d) execute a non-disparagement and/or confidentiality agreement.
10. Settling Defendants and/or their representatives shall pay Ms. Watson One Hundred Thousand Dollars ($100,000.00) within fourteen (14) business days of the entry date of this Consent Decree. This payment shall reflect payment for non-wage compensatory damages. Ms. Watson shall provide Settling Defendants with a W-9 form within five (5) days of the entry of this Decree. Settling Defendants and/or their representatives shall make payment by check in the amount of $100,000.00 made payable to Ms. Watson at an address that the Commission will provide to Settling Defendants. Settling Defendants and/or their representatives will issue an IRS form 1099 for this payment of non-wage damages.
11. Settling Defendants and/or their representatives shall simultaneously transmit a copy of the check made payable to Ms. Watson to:
EEOC-SEFO_COMPLIANCE@EEOC.GOV and SEFO_BLI@eeoc.gov.
12. Settling Defendants, their officers, agents, managers, foremen, superintendents, safety officers, hiring officials, and human resources personnel who provide advice and assistance to the foregoing individuals are enjoined from engaging in practices which unlawfully discriminate against applicants and/or employees on the basis of disability or in retaliation for engaging in protected activity. In recognition of its obligations under the ADA, Settling Defendants shall institute the policies and practices set forth below.
13. During the duration of this Consent Decree, Settling Defendants will provide prior written notice to any potential purchaser of the Settling Defendants' businesses, or a purchaser of all or a portion of the Settling Defendants' assets, and to any other potential successor, of the EEOC's lawsuit, the allegations raised in the EEOC's Amended Complaint, and the existence and contents of this Consent Decree.
14. Within seventy-five (75) days from January 1, 2020 and for its duration, Settling Defendants collectively shall have an anti-discrimination policy that prohibits discrimination and retaliation for engaging in protected activity, explains to employees their rights and responsibilities under EEO laws, and is subject to periodic updating to reflect changes in anti-discrimination laws. Settling Defendants' anti-discrimination policy will contain specific provisions relating to the Americans With Disabilities Act, as amended, with special emphasis on the employer's obligation to provide equal employment opportunities to employees and job applicants with disabilities, including those with any physical or mental impairments or conditions that the employer regards as or perceives as a disability, and the ADA's reasonable accommodation obligations. These policies will include, at a minimum, (a) an express statement of the ADA's prohibition against an employer discriminating against a qualified individual on the basis of disability in regard to job application procedures, hiring, and other terms, conditions and privileges of employment, including being subjected to a prohibited action because of an actual or perceived impairment; (b) an express description of how Settling Defendants and their managers, foremen, superintendents, safety officers, hiring officials, and human resources personnel must carry out hiring and employment practices and procedures with regard to an employee or job applicant who is disabled, is "regarded as" disabled, or is deemed unfit for duty due to an actual or perceived impairment; (c) an express description of its duty to engage in the interactive process, with an applicant or employee who is disabled, has a record of disability, or expresses a need for reasonable accommodation; (d) an express description of how an applicant or employee may request a reasonable accommodation; (e) an express description of how their managers, foremen, superintendents, safety officers, hiring officials, and human resources personnel must respond to requests for reasonable accommodation or when aware that a reasonable accommodation may be necessary; and (f) an obligation to educate its officers, agents, managers, supervisors, hiring/interviewing officials, and human resource personnel about how to respond to such requests. The policies will state that they are promulgated at the direction of and with the endorsement by the highest level of Settling Defendants' management.
15. Settling Defendants' anti-discrimination and anti-retaliation policies will include a complaint procedure for employees and applicants to ensure convenient access to points of contact for reporting and require a timely response by the company. The procedures shall: (a) identify multiple points of contact through which employees and applicants can lodge complaints, including phone numbers, addresses, and email addresses for those points of contact; (b) allow complaints to be submitted anonymously or verbally in the primary language of the employee, without need of submission of a written statement; (c) provide a method for documenting verbal complaints by management; (d) explain that Settling Defendants will conduct a thorough investigation after a complaint is made or received; (e) indicate that investigations will commence within five (5) days after a complaint is received and completed within thirty (30) days; (f) state that the confidentiality of complainants, victims and witnesses will be maintained to the extent feasible; (g) state that Settling Defendants will take appropriate corrective action upon determining that discrimination or retaliation has occurred; (h) state that complainants and witnesses will not be retaliated against or suffer any negative employment consequences for complaining or cooperating in an investigation; and (i) indicate that Settling Defendants will communicate to the complainant, within five (5) days of the conclusion of the investigation, the results of the investigation including a general description of the remedial actions taken or proposed, if any. The procedures shall also include a statement from a high-ranking company official stating that employees with complaints of discrimination and retaliation they experience or observe should come forward about them.
16. These policies and procedures listed in Paragraphs 14-15 shall be provided to the EEOC for review and comment no later than thirty (30) days prior to implementation. Within fourteen (14) days of receipt, the EEOC will advise Settling Defendants of any comments. EEOC agrees to review the proposed policies and procedures in good faith. Not later than ninety (90) days after January 1, 2020, Settling Defendants shall distribute a written copy of its EEO policies to all its employees, both management and non-management, by electronic transmission. This policy will also be distributed to every employee hired or re-hired during the duration of this Consent Decree.
17.
18. Not later than ninety (90) days after January 1, 2020, Settling Defendants collectively shall provide a two-hour EEO training to all of their existing General Foreman or above, Safety Officers (to the extent they are not already included in the General Foreman category), and the human resources personnel who provide advice and assistance to them at Settling Defendants' facilities in Washington State. In addition, in anniversary year 3 of entry of this Consent Decree, Settling Defendants shall provide another two-hour EEO training to all General Foreman or above, Safety Officers (to the extent they are not already included in the General Foreman category), and human resources personnel who provide advice and assistance to them at Settling Defendants' facilities in Washington State. These trainings, shall include, at a minimum, an overview of the ADA and its anti-retaliation provisions with special emphasis on: (a) the ADA's prohibition against discriminating against a qualified individual on the basis of disability in regard to job application procedures, hiring, and other terms, conditions and privileges of employment, including being subjected to a prohibited action because of an actual or perceived impairment whether or not the impairment limits or is perceived to limit a major life activity; (b) an employer's duty to engage in the interactive process, with an applicant or employee who is disabled, has a record of disability, or expresses a need for reasonable accommodation; (c) how an applicant or employee may request a reasonable accommodation; (d) how Settling Defendants' managers, foremen, superintendents, safety officers, hiring officials, and human resources personnel at the Settling Defendants' facilities in Washington State must respond to requests for reasonable accommodation or when aware that a reasonable accommodation may be necessary, including what factors will be considered in approving or denying the requested accommodation, the type of information an employee or applicant must submit to support the requested accommodation and the time frame for approval or denial; (e) the obligation under the ADA to conduct an individualized assessment of an applicant or employee's present ability to safely perform the essential functions of the job where an individual or disability poses a direct threat to the health or safety of self or others in the workplace; and (f) a procedure to track requests for accommodation by applicants or employees with disabilities or any applicants who are deemed unfit for duty due to an actual or perceived impairment and report this information to the EEOC as set forth below. Settling Defendant will provide reasonable accommodations as necessary for any attendees with a disability.
19. For the duration of this Consent Decree, Settling Defendants shall provide the policies and procedures listed in Paragraphs 14-15, either in hard copy or available electronically, to all its employees at Settling Defendants' facilities in Washington State at the time of new hire, and shall discuss them with the new hires if they have any questions about them.
20. The trainings described in Paragraph 18 shall be developed and conducted by a person or entity with established training or experience in conducting anti-discrimination and anti-retaliation training with an emphasis on the ADA, which may include counsel in this litigation for the Settling Defendants, representatives of the Settling Defendants with the requisite training or experience, or may be presented by webinar in lieu of live training. All training materials must be submitted to the EEOC for review and comment no later than thirty (30) days prior to holding the first training sessions. Within fourteen (14) days of receipt, the EEOC will advise Settling Defendants of any comments. EEOC agrees to review the proposed training materials in good faith. The costs of training shall be borne by Settling Defendants.
21. For the duration of this Consent Decree, Settling Defendants shall notify the EEOC of the completion of the training described in Paragraph 18 and shall specify the name and job title of the individual who participated in and completed the training. This information shall be provided as part of the report Settling Defendants submit to the EEOC.
22. Settling Defendants shall not disclose any information or make reference to any charge of discrimination or this lawsuit in responding to requests for information about Ms. Watson, except Settling Defendants may disclose such information to its attorneys, accountants, and tax advisors, or similar professionals, or as otherwise required by law or subpoena. Settling Defendants shall ensure no charge or allegation of discrimination against Settling Defendants, including allegations raised in this lawsuit, is included in Ms. Watson's personnel file. In addition, Settling Defendants shall respond to any inquiries by potential employers by stating only: "Consistent with our usual practices, we can only confirm Ms. Watson's dates of employment and position held. Ms. Watson was employed with us from March 4, 2015 through March 28, 2015 and held a position as a Rigger." To the extent any such inquiries are requested in writing, Settling Defendants shall respond by providing only Ms. Watson's dates of employment and position held.
23. The policies required by Paragraph 14 shall include performance policies and standards that specifically state that all managers, foremen, superintendents, safety officers, hiring officials, and human resources personnel have a duty to ensure compliance with its EEO policies. Settling Defendants agree that Settling Defendants shall impose discipline, up to and including termination of employment, upon any managers, foremen, superintendents, safety officers, hiring officials, and human resources personnel who Settling Defendants determine have discriminated against any applicant and/or employee on the basis of disability, or who they determine have retaliated against any person who complains about or participates in any investigation or proceeding concerning any allegation of discrimination.
24. During the pendency of this Consent Decree, Settling Defendants shall make available a human resources official, or other appropriate personnel responsible for handling disability-related employment matters, for audits made upon request by EEOC to determine compliance with this Consent Decree. EEOC shall provide notice of audit subject matter not later than ten (10) business days in advance but, at a minimum, the audit shall include whether Settling Defendants have denied disability-related reasonable accommodation to any individual and whether Settling Defendants have received any complaints about discrimination against individuals based on disability. Any requested audit will be conducted at a mutually agreeable time and place.
25. Settling Defendants shall agree to report to the EEOC in anniversary years one and three of entry this Consent Decree. The report shall be in writing and submitted to: EEOC-SEFO_COMPLIANCE@EEOC.GOV and SEFO_BLI@eeoc.gov. The reporting period will run from the date of the entry of this Consent Decree.
26. These year 1 and year 3 reports shall contain the following information and attachments:
27. If applicable, Settling Defendants shall submit a statement with its report to the EEOC specifying the areas of noncompliance, the reason for the noncompliance, and the steps that shall be taken to bring Settling Defendants into compliance.
28. Settling Defendants shall post a Notice to All Employees. This Notice is attached as Exhibit 1 to this Consent Decree. The Notice shall be conspicuously posted on bulletin board at Settling Defendants' office in Bellingham for three years for the entry of this Consent Decree, and inside Settling Defendants' trailer(s) located at the Marathon Refinery site for one year of the entry of this Consent Decree.
29. If the EEOC determines that Settling Defendants have not complied with the terms of this Consent Decree, the EEOC shall provide written notification of the alleged breach to Settling Defendants. The EEOC shall not petition the Court for enforcement of this Consent Decree for at least thirty (30) days after providing written notification of the alleged breach. The 30-day period following the written notice shall be used by the EEOC and Settling Defendants for good faith efforts to resolve the dispute. If the EEOC petitions the Court and the Court finds Settling Defendant to be in substantial violation of the terms of the Decree, the Court may extend the duration of the Consent Decree.
30. The United States District Court for the Western District of Washington shall retain jurisdiction over this matter for the duration of this Consent Decree.
31. This Consent Decree shall be in effect for three (3) 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 Settling Defendants to be in violation of the terms of the Consent Decree, the Court may extend the duration of this Consent Decree.
This notice has been posted pursuant to the settlement of a lawsuit filed against BLI Northwest Inc., f/k/a Diamond B Constructors Inc. and Harris Pacific Northwest, LLC f/k/a Harris Acquisition IV, LLC (jointly the "Company"), Western District of Washington, Case No. 2:18cv-00926-RAJ. The settlement terms are contained in a document filed with the Court and available to the public called a "Consent Decree." In accordance with the Consent Decree, the Company will provide anti-discrimination training to all of its existing General Foreman or above, Safety Officers (to the extent they are not already included in the General Foreman category), and the human resources personnel who provide advice and assistance to them at The Company's facilities in Washington State; implement policies to ensure ADA compliance; provide its EEO policy to all employees; implement policies to ensure accountability with regard to anti-discrimination practices; and report to the EEOC all complaints of disability discrimination or retaliation it receives from its employees for the next three (3) years.
Federal law prohibits an employer from discriminating against any individual based on the individual's disability with respect to hiring, promotion, demotion, terms and conditions of employment and/or termination. Federal law also prohibits an employer from allowing any employee to be harassed because of disability, age, race, color, sex, religion and national origin. It is also unlawful for an employer to retaliate against any individual because he or she complains of discrimination or harassment, cooperates with any company or government investigation of a discrimination or harassment charge, participates as a witness or potential witness in any investigation or legal proceeding, or otherwise exercises his or her rights under the law.
Any employee who is found to have retaliated against any other employee because such employee participated in this lawsuit will be subject to substantial discipline, up to and including immediate discharge.
Should you have any complaints of discrimination or retaliation you should contact [DEFENDANTS CONTACT BY NAME AND PHONE NUMBER].
Employees also have the right to bring complaints of discrimination or harassment to the U.S. Equal Employment Opportunity Commission, Seattle Field Office, at 909 1st Avenue, Suite 400, Seattle, WA 98104-1061, 206.220.6884, 1.800.669.4000.
